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WATER LEGAL NEWS
Colorado Water Congress • 1390 Logan St., Rm. 312 • Denver, I e rado 80203 Phone: +i '3) 837-0812
Legal News Editor, Greg Hobbs ' - 982
A SUMMARY OF CURRENT LEGAL DEVELOPMENTS AND PENDING CASES OF
INTEREST TO COLORADO WATER USERS
1. The Colorado Supreme Court (Justice Erickson) has applied the measure of
historic consumptive use to irrigation of increased acreage in designated ground
water basins.
The State Engineer successfully argued to the Court that irrigation of additional
lands from already permitted wells could result in increased consumptive use and/or
diminution of return flows which are relied upon by other well users.
Thus, application must be made to the Ground Water Commission before lands are
irrigated, other than those for which the well in question was originally obtained.
The Court made this rule applicable to wells obtained before, as well as after,
adoption of the 1965 Colorado Ground Water Management Act.
. The Court held that the Legislature had made the doctrines of prior appro-
priation and protection against material injury applicable to water withdrawals
from designated ground water basins.
Therefore, said the Court, changes in place of use are to be judged by the
same legal standards as those used for surface water rights. Building on Weibert
v. Rothe Brothers, the Court stated those standards to be the following:
An appropriator cannot change the point of diversion or the place
of use if the change increases the amount of water or the historical
use to the detriment of other appropriators. Historical use, however,
may be less than the optimum utilization represented by the "duty of
water." The historical use of a particular water right is not
measured solely by the amount of water withdrawn and applied to bene-
ficial use, but also by the amount of return flow. It is a funda-
mental principle that the consumptive use of water may not be
increased to the injury of other appropriators.
***
Appropriators are legally entitled to rely on the return flows they
have historically received from diversions made by other appropria-
tors. It is clear that unreasonably injurious changes of use may ensue
from any use of the land which results in a reduction of the amount
of return flow of water into a designated ground water basin or which
allows the well owner to utilize more basin water simply through in-
creasing the amount of acreage irrigated.
***
The burden of proof to establish that a change of use will not injure
the rights of other users from the same source rests upon the person
seeking the change. Moreover, where expansion of use is the injury
asserted, establishment of no increase in historical use is the burden
of the applicant.
The Court rejected the well owner's argument that he was entitled to apply the same
amount of water to irrigate four sections of land as he had previously used to irri-
gate three sections. The Court noted that increased evapotranspiration alone minht
reduce return flow to the injury of other ground water appropriators. 820725
r 7/7/5-- -
WATER LEGAL NEWS -2- June 29, 1982
The case was remanded for trial court determination as to whether there would
be an increase of historical consumptive use, or decreased return flows, and whether
there was unappropriated water available for increased usage. Danielson v. Kerbs
Ag. , Inc., Colo. , P.2d (No. 81SA165, announced June 1, 1982) .
2. The Colorado Supreme Court (Justice Erickson) has reaffirmed its ruling
in Vidler that speculation in water for sale to third parties in the future will
not be allowed.
The appropriator must intend to use the water "on lands it owns or leases,"
or "in facilities it owns or operates," or it must have "contractual commitments"
with municipalities or persons who will use the water.
The Court said that "serious negotiations" with a municipality regarding the
prospective use of the claimed water is not sufficient to prove the intent element
necessary as part of the first step towards an appropriation.
The Court noted that the purpose of a conditional water decree, within adminis-
tration of the priority system, is to allow the ultimate appropriation of water to
relate back to the time of the "first step" toward that appropriation. This "first
step" consists of "the formation of an intent to appropriate a definite quantity of
water for a beneficial use, and an overt manifestation of that intent through
physical acts sufficient to constitute notice to third parties."
The Court held that the intent element was not satisfied by a company proposing
to build a trans-mountain diversion project, because the ultimate users of the
claimed water right were not clearly specified in the application, and the appli-
cation was open-ended with respect to the beneficial uses to which the claimed
water might be put. Rocky Mountain Power Company v. Colorado River Water Conser-
vation District, _ Colo. , P.2d _ (No. 81SA327, announced June 7,
19821-.
3. The Colorado Supreme Court (Justice Lohr) has upheld the bylaw of a mutual
ditch company which requires shareholders in the ditch to obtain Board of Director
approval before changing the place of water delivery.
The State Division of Wildlife had purchased 2,097.58 shares of Catlin Ditch
stock for a recreational pool in John Marten Reservoir. By exchange, the State
proposed to dedicate its Catlin shares to the Fort Lyon Canal Company in return for
water to be stored in John Martin. In order to effectuate the exchange, the place
of water delivery under the Catlin shares had to be changed to the Fort Lyon head-
gate twenty-five miles downstream from the Catlin Canal headgate.
The purpose of the Catlin bylaw was to allow the Catlin Board of Directors to
determine if the transfer could be accomplished without injury to other Catlin
shareholders. The Court held that this was a reasonable restriction, and that the
State and Fort Lyon were bound by it, since the bylaw was in existence at the time
the State purchased its Catlin shares.
In doing so, the Court observed that contractual agreements may modify water
rights:
. . . rights incident to water right ownership can be modified by
private agreement . . . .
WATER LEGAL NEWS -3- June 29, 1982
Although the Water Right Act provides protection against a change
of water right that would injuriously affect other vested water
rights, section 37-92-305(3) , C.R.S. 1973, this is not inconsistent
with or frustrated by private agreements contractually limiting an
owner's right to a change of water right so long as those limitations
are reasonable.
The Court said that water rights cannot be changed without judicial approval
but reasonable contractual limitations will be honored by the Court in considering
a change application. The Court noted that, should the Catlin Board unreasonably
deny the requested change, the State and Fort Lyon could have the disapproval re-
viewed upon return to water court with a change application. Fort i_ on Canal
Company v. Catlin Canal Comjaa, __ Colo. , 642 P.2d 501 (1982).
4. In a follow-up decision to a case decided February 8, 1982, the Colorado
Supreme Court (Justice Hodges) unheld the denial of a conditional water right for
the Glenwood Canyon Project of the Colorado River Water Conservation District.
The Court held that an appropriation must be pursued diligently between
the time an application for conditional decree is filed and the time it is
considered by the water court.
The River District had engaged in litigation opposing the applications of
others for competing water rights, but the Court said that this was not sufficient
to show diligent pursuit of the application.
The Court again stated that the diligence requirement is for the purpose of
promoting:
This state's policy of putting water to beneficial use at the
earliest possible time.
Whether an appropriation has been pursued with diligence is to be determined
on an ad hoc basis in light of all the factors present in each particular case,
said the Court. Colorado River Water Conservation District v. City and County of
Denver, Colo. , 642 P.2d 510 (1982) .
Comments on the legal newsletter and suggestions for inclusion should be addressed
to Greg Hobbs, P.O. Box 185, Denver, Colorado 80202 (phone: 303/892-9400).
- OVER -
WATER LEGAL NEWS -4- June 29, 1982
The Colorado Water Congress has published a complete book containing all water
and water related laws of the second regular session of the fifty-third General
Assembly. This book, incidentally, will "beat" the session laws by approximately four
months in terms of publication date. The one hundred thirty-two page book includes the
following new laws: SB 44--special district service plans; SB 87--Water Conservation
Board Construction Fund; SB 97-- initiative petitions; SB 111--county capital improve-
ment trust funds; SB 119--state lottery program; SB 127--Water Resources and Power
Development Authority special funds; SB 148--a power authority and short term obliga-
tions; HB 1002--soil conservation districts; HB 1065--acquisition of water rights at
Bonny Reservoir; MB 1095 waste disposal sites; HB 1097--rules & regulations of the
Department of Health; HB 1099--legislative review of rules and regulations of execu-
tive agencies; HB 1134--Colorado Water Resources Institute; HB 1147--severance tax
upon carbondioxide; HB 1148--authority of governmental entities to establish power
authorities and water authorities; HB 1158--severance tax & oil shale; HB 1198--
severance tax & oil shale; and HB 1246--low-level radioactive waste. In addition,
the following other actions of the legislature are included; namely: SCR 1--proposed
constitutional amendment on lengths, and subjects of bills considered during, even-
numbered session; HCR 1005--proposed constitutional amendment on property tax;
SJR 6--Narrows and Animas-La Plata; SJR 12--National Wildlife Federation v. Gorsuch;
SJR 19--Legislative Council interim studies; and SJM 1--Endangered Species Act.
Since the book is 132 pages in length and paper, printing, postage and labor are
significant costs, the price of the book is $40 (CWC members) and $80 (non-members).
Furthermore, since there are only fifty copies of this book available, distribu-
tion will be governed in order of requests. Readers are urged to place their order
for the "1982 Colorado Laws Enacted of interest to Water Users" as quickly as pos-
sible -- call or write the Colorado Water Congress, 1390 Logan Street, Room 312,
Denver, Colorado 80203, phone: (303) 837-0812. (Twenty-four of the 50 copies of the
"Laws Enacted" have already been sold. )
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