HomeMy WebLinkAbout851219.tiff WATER LEGAL NEWS 1
Colorado Water Congress 1 390 Logan St., Rm. 312 Denver, Colorado 80203.,• Phone: (303) 837-0812
A 1E8 61985
Legal News Editor, Greg Hobbs -�_ ' ' January 11, 1985
1. The Colo-ado Supreme Court (Justice Dubofsky) has ruled that a conditional
water rights decree may not be awarded without "proof that water will be diverted and
that the project will be completed with diligence before issuance of a decree for a
conditional right." (Court's own emphasis.) The Court's decision is based on a Colorado
statutory provision which was added in the aftermath of the "Huston" water filings, which
were considered by many to be speculative in nature. This provision states that:
No claim for a conditional water right may be recognized or a decree
therefore granted except to the extent that it is established that the
waters can be stored and will be diverted, stored, or otherwise cap-
tured, possessed, and controlled and will be beneficially used and
that the project can and will be completed with diligence and within
a reasonable time.
37-•92-305(9)(b) , 15 C.R.S. (1983 Supp.)
The applicants for the decree were two municipalities, the Town of Coal Creek and
the Town of Williamsburg. They sought a conditional right to divert 100 c.f.s. from the
Arkansas River.
The Court observed that the town's current project design would provide the
capability of diverting only 4.7 c.f.s. and, further, that water under the right sought
by the towns might be available only rarely, perhaps only once every twenty-five years ,
because the "Arkansas River is severely over-appropriated."
The objector, Southeastern Colorado Water Conservancy District, argued that no
Junior water right should be allowed without a plan for augmentation, in light of the
overappropriated status of the Arkansas River. The Court disagreed, saying that :
As the water court noted, senior rights are not injured by junior
diversions as long as those diversions occur in priority . . . The
conditional decree at issue does not authorize out-of-priority
diversions which would injure senior appropriators. The admin-
istration of the applicants' right to avoid such injury is the
responsibility of the state engineer and the division engineer.
However, the Court ruled that the new statutory language precluded relying on the
chance that the Town's future water requirements might increase, that funds might become
available, and that there might be water in the river to divert;
The plain language of section 37-92-305(9)(b) precludes the "wait
and see" approach suggested by the applicants s . . Here, the
applicants' assertion that conditions on the river may change,
or that there might be meteorological changes which will increase
the availablity of water, is insufficient to meet the requirements
of section 37-92-305(9)(b) . Likewise the water court's state-
ment that it is the applicants' decision whether eventually to
expand their facilities to divert the entire 100 c .f.s. of water
under the right does not suffice as a finding under section 37-
92-305(9)(b) that the water will be diverted,
(Southeastern Colorado Water Conservancy District v. The City of Florence, Colo. Sup. Ct.
No. 83SA3O announced 'eptember 384)%
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ak R LEGAL AL NEWS January 11, 1985
2. The Colorado Supreme Court (Justice Lohr) has determind that a water right for
"developed water," free of administration under the priority system, cannot be obtained
through removal and drainage of a natural marsh. Applicant claimed a right based upon
draining the marsh, a peat bog, to reduce the rate of evaporation and evapotranspiration,
thereby decreasing consumptive use of water by 43.3 acre feet per year which.
historically, had been lost to the stream.
The Court refused to include such "water savings" within the developed water
doctrine:
We hold that reduction of consumptive use of tributary water cannot
provide the basis for a water right that is independent of the system
of priorities en the stream. . . Nowhere in the entire scheme of the
1969 Act is there a suggestion that rights to tributary water independent
of the priority system can be obtained.
The Court reaffirmed prior cases which held that developed water rights
independent of the priority system mczv be recognized when one uses nontributary water to
increase "the flow of a natural stream by adding water that otherwise would not reach the
stream." However, the Court overruled any case which suggests that "water evaporated
from soil or surface or transpired by plant life i$ inherently nontributary because it
does not find its way to the stream."
The Court pointed out that "the General Assembly had not authorized the creation
of a water right outside the priority system through elimination of a prior consumptive
use." The Court also based its decision on "the larger consideration of achieving
maximum feasible use of both land and water."
The Court observed that the legislature, not the courts, should decide whether water
rights can be obtained in connection with modifying natural conditions:
A separate strand of analysis supported our decision in Shelton
Farms . We expressed concern over adoption of a rule of law
that would encourage widespread destruction of plant life,
with attendant likelihood of irreparable erosion and the
creation of a barren wasteland. He said, "the waters of
Colorado belong to the people, but so does the land. There
must be a balancing effort , and the elements of water and
land must be used in harmony to the maximum feasible use
of both" 187 Colo. at 191, 529 P,2d at 132.7. Cf. In Re
Rules and Regulations , 674 a.2d 914 (Coln. 198T'
(EhvironmentaI co terns are properly to be taken into
account in rules and regulations promulgated by the state
engineer to govern administration of diversions of
tributary water) :
The water rights sought here are based upon, alterations
of long existing physical characteristics of the land,
Alteration of natural conditions and vegetation in order
to save water carries with it the potential for adverse
effects on soil and bank stabilization, soil productivity,
wildlife habitat, fisheries production, water quality,
watershed protection and the hydrologic cycle. .
Whether to recognize such rights, and thus to encourage
innovative ways of reducing historical consumptive uses
by modifying conditions found in nature, is a question
fraught with important public policy considerations.
As such, the question is especially suited for resolution
r;ATEk LEGAL NEWS S -3- January I1, 1965
through the legislative process . (Parentheticals are the
Court's own.)
(R.J.A., Inc. v. The Water users Association of District No.6, Colo. Sup. Ct. No.83SA25;
announced September I6, 1484) .
3. The Colorado Supreme Court (Justice Kirshbaum) has held, in a change of water
rights case, that a pro-rata distribution formula based on historic irrigation
consumption may be utiTizeiin determining how much water the applicant may convert from
a mutual ditch.
Anticipating construction of a new power plant, Public Service company of Colorado
entered into option contracts for the purchase or water rights from shareholders of two
mutual ditch companies in the Arkansas Basin. Public Service then applied for a change
of water rights from agricultural to include all industrial , domestic, municipal , and
recreational uses.
The objectors argued that the water court erred in failing to make specific
findings of actual in-ditch distributions, as among junior and senior priorities within
the ditches.
But the Supreme Court approved applicant's engineering analysis which "described
historic stream diversions on a ditch-wide basis, and determined the internal allocation
of water on a decree-by-decree analysis based on the ownership of shares." The
engineering analysis also examined "stream diversions and actual consumption by first
calculating the gross diversions. and then determining 'actual consumptive use' by
factoring in conveyance losses, irrigation efficiency, return flow patterns and soil
moisture content." The Supreme Court directed the water court to incorporate
applicant's engineering report into the decree, in order to guide the "resolution of
future questions which may arise concerning the effect of the decree."
The Court recognized that actual shareholder-by-shareholder consumption under the
junior priorities could not be established, because no reliable records had been kept.
No one had contested the fact that each shareholder received at least that amount of
water which their pro rata ownership interests entitled them to receive.
In these circumstances, we hold that the applicants were entitled
to a presumption that water was historically used by the share-
holders on the basis to which they were legally entitled to use
such water. In this case, that basis is each shareholder's pro
rata share of the water rights owned by the company. . . Such
eventiary rule permits applicants who can demonstrate gross
patterns of historic use of water rights to seek beneficial
changes in such patterns of use which otherwise would be pro-
hibited not because of demonstrable injury to the legal rights
of others but because of the practical problem of the unavail-
ability of reliable records. A shareholder asserting that
historic use differed from use based on legal ownership may,
of course, attempt to rebut the presumption.
The Court noted that the applicant for a change of water rights bears the burden
of establishing the "absence of injurious results from the proposed change" but that the
burden of going forward shifts when the applicant has made a prima facie case for no
injury. In order to accomodate the interests of those who seek a c > ge of water rights
and those who may be injured, the Court noted that water courts can fashion conditions to
prevent injury, which may include limitations on the use of the water, relinquishment of
part of the decree for which the change is sought or of other decrees owned by the
applicant, time limitations on diversions, and/or "dry-up" requirements. (Las Animas
Consolidated Canal Company v. Allen, Colo. Sup. Ct. No. 83SA60, announced September II,
1984).
WATER LEGAL N -4- January 11. 1985
4. The Colorado Supreme Court (Justice Lohr) has held that neither an absolute
nor conditional decree may be granted in connection with a flood control reservoir whose
dam was washed out and never rebuilt and whose waters were used for irrigation only once.
Amity Mutual Irrigation Company sought an absolute storage decree for 2,565 acre
feet of water with a priority date of November 18, 1933, and a conditional storage decree
of 12,635 acre feet of water with a priority date of November 18, 1933.
The claimed rights and priority dates were based on the 2,565 acre foot Horse
Creek Reservoir, which was built in 1933 by the Works Progress Administration for "flood
prevention purposes ." On one occasion water from the reservoir was used for a period of
twenty-four to thirty-six hours to irrigate sugar beets . A flood washed out the dam in
1935, and it was not rebuilt.
In subsequent years, Amity and the Town of Holly applied to the Soil Conservation
Service for study of a 15,200 foot reservoir on Horse Creek. Holly assigned all of its
rights to.Amity. Amity then sought to relate back its water rights to the date of the
original Horse Creek Reservoir.
The Supreme Court refused to allow relation back, observing that the application
of an undetermined amount of water to beneficial use on a one time basis is not
sufficient demonstration of intent to appropriate for purposes of an absolute decree.
As for the conditional decree, the Court noted that the sole evidence regarding a
15,200 acre foot reservoir eas a 1973 Soil Conservation Service investigatory report.
There was no evidence that such a project was contemplated when the much smaller Horse
Creek Reservoir was built in 1933. Moreover, there was no evidence of any agreement
between the Works Progress Adminstration and Holly or Amity to apply the Horse Creek
Reservoir waters to beneficial use. Rather, that reservoir was planned and built for
flood control purposes.
The Court also prohibited Amity from utilizing surveys of the Works Progress
Administration as a "first step" in Amity's appropriation, since there was no evidence of
a legal or contractual relationship between that government agency and Amity in its role
as a subsequent private appropriator. (The Fort Lyon Canal Coeparly v, The Amity Mutual
Irrigation Company_, Colo. Sup. Ct. 1 o.8c 226,anrwaunced 'September 17, 1981) .
5. The Colorado Supreme Court (Justice Dubofsky) has ruled that a conflicting
description in decreed amount of water, which appears on the face of a decree entered
prior to the 1969 IdjudIcation Act, may be corrected some fifty years after entry of the
original decree.
An absolute storage decree, entered in 1932, referred to 350,000 cubic feet of
water as the amount decl`eed for the reservoir. This would amount to only 8 acre feet of
water. But the decree also recited that the reservoir could be filled under the right up
to "10 feet above the base of the outlet tube." This would amount to 108 acre feet of
water, and the reservoir has always been operated in this fashion.
The 1969 Adjudication Act contains a provision which provides, for correction of
"clerical mistakes," but only if a petition is brought within three years after entry of
the decree. The Court said this provision was not meant to have retroactive effect.
The law in effect at the time of the decree's entry in 1932 allowed correction of
clerical errors at any time, thereby providing the water court with authority to amend
the original decree in order to correct a clerical error. The Supreme Court remanded the
case for the water court to decide whether a clerical error had occurred. (MeYrin
Livestock Company v. Wamsley Cattle Company, Colo. Sup. Ct. No. 825)1183, announced August
27, 1984) .
Lk:6AL iyt ; , uary , 1, 1985
6. The Colordo Supreme Court has ruled that ownership of a water right may be
obtained by adverse possession, even though the disputed water may be used at times by
others. Adverse possession ripens through eighteen years of use which is "actual ,
adverse, hostile, and under claim of right, as well as open, notorious, exclusive and
continuous."
At issue in the case was whether a use can be "exclusive and continuous" where
other use the waters occasionally. The Court said that actual patterns of use vary on a
day to day basis. By cooperating with each other on a cooperative and informal basis,
those with legal ownership of water rights do not lose their rights. This also applies
to those who have obtained their ownership by adverse possession.
The actual patterns of use of water rights one dictated more by
day-to-day circumstances than by legal rights of ownership.
Informal exchanges and mutual accommodations by owners of
water rights occur frequently in response to changes in
water levels, weather patterns and crop needs to permit
maximum utilization of this critical resource. In view of
these practices the adoption of mutually agreeable rotation
systems by the owners of water rights cannot be deemed
conclusive proof of either the creation or the abandonment
of particular ownership rights. Any such legal presumption
would discourage that spirit of cooperation and mutual concern
which is essential to the maximum beneficial use of available water.
The Court observed that one who claims a water right by adverse possession bears
the burden of proof, but his claim is not defeated just because others use all or part of
the water available under the claimed right at times. (Bagwell v. U-Heart Ranch, Inc.,
Colo. Sup. Ct. No.82 SA 496, decided November 19, 1984)
7. The Colorado Supreme Court (Justice Quinn) has upheld the award of absolute
decrees to the Southeastern Water Conservancy District for Pueblo Reservoir and Turquoise
Lake. Several protestants had claimed that the conditional storage rights for both
reservoirs referred to native waters of the Arkansas Basin. Because both reservoirs were
used to store transmountain water from the Frying pan - Arkansas Project, and not native
waters, protestants argued that absolute decrees could not be awarded.
' The Court disagreed, saying that the conditional decrees for Pueblo Reservoir and
Turquoise Reservoir were broad enough to encompass storage of transmountain water.
The Court also ruled that flood control is a beneficial use of water in Colorado.
Protestants had objected to an absolute storage decree in Pueblo Reservoir for 5,645 acre
feet of Arkansas River flood waters. The Court again disagreed with protestants, citing
Colorado's Water Conservancy Act.
. we note that the Conservancy Law of Colorado specifically provides that
conservancy districts may be established for the purpose of preventing floods,
and, in order to effectuate that purpose, provides that conservancy districts
may acquire, own, lease, use, sell , and hold water rights. The legislature,
we believe, would not have granted conservancy districts the right to acquire
a water right for the purpose of preventing floods unless it considered flood
prevention a beneficial use of water.
The Court had occasion to reiterate that 'any substantive challenge to a judgement
of a water right decree is barred unless filed within three years of entry of such
judgment and decree and unless supported by a satisfactory showing of mistake,
inadvertence, or excusable neglect." Section 37-92-304(10) , 15 C.R,S. (1973). (Pueblo
West Metropolitan District v. Southeastern Colorado Water Conservancy Cistrict, Cob o.
Sup. Ct. No.82 SA 225, Decided October 22, 1984.)
WATER LEGAL _. ,_. {'ai`y Via, za$3
8. Tee Colorado Supreme Court (Justice Quinn) has refused to rule on the
constitutionality or the unconstitutionality of a 'watershed protection' ordinance which
was enacted by the town of Crested Butte in 1980. AMAX, Inc. had obtained a District
Court ruling which held that the ordinance conflicted with the exclusive statutory powers
of the Col oradt. Water Quality Control Commission, the Mined Land Reclamation Board, and
the United States Forest Service.. The District. Court also said that the c -dlnance
interfered with the Colorado constitutional right to appropriate water.
The Colorado Supreme Court, however, observed that Colorado law, section
31-15-7O7(1)(h) , 12 C.R.S. (1977) , allows hc-ie rule cities to protect municipal water
works from 1rjury by extending its jurisdiction "over the stream or source from which the
water is taken for five miles above the paint from which it is taken and to enact all
ordinances and regulations necessary to carry the power conferred in this paragraph (b)
into effect.*
The Court said that legislative enactments, including municipal ordinances, are
presumed to he constitutional , unless shown to be unconstitutional beyond a reasonable
doubt, rurthereere ore who brings such a suit must show that the challenged statute or
ordinance "wit likely cause tangible detriment to conduct or activities that are
presently occurring or are likely to occur in the new future."
AMAX challen ed the ordinance without applying for a permit or obtaining a
determination from the town that its ordinance applied to AMAX's ongoing activities
which, a gu shle, night he grandfathered under the terms of the ordinance. F oreover, th.
ordinance contained a provision for "minor impact" determinations, proviuing for hearing
and decision within forty-five days. The Court further noted that it could not be
determined, whether the town would actually impose permit conditions which, woeid
ism roper ly ce E `at federal�: ..r �, .. . . .... ,.a wr E�$c: dl laws
'hat we have, therefore, is a summary adjudication of issues based on a
series of ass€=;led facts - namely, that the ordinance will be applied to
A=',X`s activities; that AMAX will be denied a. permit or will be unable to
obtain e decision on a permit application in a timely fashion, or will be
Issued t permit the conditions of which are in direct conflict with state
and fee =l legislation; and' that as a result of the permit process AMAX
will be aeveroely affected in its mining operations or Will be forced to
proceed at t es peril of criminal sanctions. That these assumptions are
mere h,pet et c .t possibilities aid nothing more serves only to rint
i p once eeein the broad array of questions that must yet be resolved
before. , Kos as claims can be appropria5.eiy resolved by summary judgment,
The Court s'', , ved that the Crested Butte ordinance does not purport to control
the app, op i .goo water rights, but only deals with water pollution co .troi measures
incident: to Vd100S activities within the Watershed Permit District.
The permit ci'n :,tions might conceivably deal only with sources o₹
water pellutien from disturbed land areas or mine tailing piles,
e nther o"s• whf h is controlled by the "point source" permit pro-
cedures of the Water QualityControl Act.
In distinguishing its decision here from other cases , the Court said that the
requisite shoeing of harm, justifying judicial review, had not been made here but had
been made in C;71 1 and Colorado Ute cases, where it was undisputed there that the air
quality r egul a :i s:q=s.._ajt issue were unquestionably applicable and that substantial cost
would be incurred in meeting the regulations. (Mt. Emmons Mining Company v. To of
Crested Butte, Colo. Sup. Ct. No.82 SA 256, deciTed November 5, 198O.
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