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Public Lands

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Colorado's public lands are faced with new challenges but water and land management depend on working together. Read about the relationship between water and land in Colorado and how Coloradans are converging to restore Colorado's public lands in the Spring 2018 issue of Headwaters magazine.

Browse articles and find a flipbook of the magazine here.

Connecting the Drops

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Water Education Colorado

Federal Water Laws in Colorado

Colorado’s water laws must also operate in conjunction with federal laws. Many federal laws deal with water issues that affect multiple states, as rivers are not confined to state boundaries and water quality affects many people.

Click the Fluent Water Facts below to learn more about Colorado water law.

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Interstate Compacts

As a headwaters state, Colorado is the origin of four major rivers that flow through 18 other states and the Republic of Mexico. Colorado cannot use all of the water in its rivers – it must allow water to flow on to other states for their use. Interstate compacts are agreements between two or more states, approved by their state legislatures and Congress, which set the terms for sharing the waters of an interstate stream.

Meeting the obligations of interstate compacts can be viewed as Colorado’s #1 administrative priority. Failure to meet the terms of the Arkansas River Compact, for example, resulted in expensive litigation and a payment of over $34 million from Colorado to Kansas.

You can learn more about Colorado’s interstate obligations in the Citizen’s Guide to Colorado’s Interstate Compacts

Federal Reserved Water Rights

A federal reserved water right is a right to water that is created when Congress or the president reserves land out of the public domain. This doctrine originally applied to water rights for Indian reservations: when the United States creates a reservation, it reserves sufficient water to fulfill the purposes of the reservation. The priority date is the date the reservation is created. This doctrine was established through the United States Supreme Court decision Winters v. United States.

Subsequent court decisions have held that the reserved rights doctrine applies to all federally reserved public lands, such as national forests, national recreational areas, and national wildlife refuges. They may also be expressly created by the Wild and Scenic Rivers Act.

In 1952, Congress adopted the McCarran amendment, which permits state courts to adjudicate federal and tribal water claims.

Water Law Managers and Regulators

The duties of administration, management, and regulation of water are delegated to several different agencies throughout Colorado.

Click the Fluent Water Facts below to learn more about Colorado water law.

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Colorado Division of Water Resources

The Colorado Division of Water Resources administers all surface water and Denver Basin, tributary and non-tributary groundwater. The State Engineer, division engineers, and water commissioners all work for this division.

The State Engineer has the authority to shut down or reduce junior decreed uses and undecreed uses to satisfy the demands of senior users. The State Engineer operates a statewide satellite-linked system that records stream flows, storage and diversion on a real-time basis.

Each of Colorado’s seven water divisions has a division engineer’s office. Each division office employs a number of water commissioners, who go into the field, monitor headgates, respond to calls for water, issue orders to reduce or cease diversions, and collect data on diversions.

Colorado Water Conservation Board (CWCB)

The Colorado Water Conservation Board is responsible for flood control and protection, the development of statewide water policy, and identifying and recommending water development projects. It makes loans and grants available for the construction of water projects. The CWCB also has interstate compact responsibilities on the Colorado River and Arkansas River, and assists the State Engineer and Colorado Division of Water Resources with other compacts. It is also responsible for the Instream Flow and Natural Lake Level Program, which maintains stream flow and lake levels necessary to preserve the natural environment.

Local and Regional Water Management Agencies

Local water management agencies include water conservancy districts, water conservation districts, groundwater management districts, towns and cities, and irrigation districts. These agencies may contract with the Bureau of Reclamation to build reservoirs and other water storage projects.

Water Conservancy Districts are local government agencies originally created to construct, pay for, and operate water projects. They may issue bonds and levy taxes and user fees. Colorado has over 50 water conservancy districts.

Water Conservation Districts are local policy-making bodies that the General Assembly created directly by statute to protect and develop the waters to which Colorado is entitled in specific regions of the state. They may issue bonds and levy taxes and user fees. They cover a large geographical area, and may encompass several conservancy districts. Colorado has four water conservation districts:

Water Quality Control Commission and Division

The Water Quality Control Commission and Division is responsible for developing state water quality policies and regulations for surface and groundwater.

Although the Commission can prescribe and enforce water quality standards, it is prohibited by state law from requiring instream flows to dilute pollution. The U.S. Environmental Protection Agency (EPA) must approve the Commission’s water quality classification and standards. The EPA may step in and enforce state-issued permits if the Division does not do so.

The Water Quality Control Division, part of the Colorado Department of Public Health and Environment, is responsible for implementing the state water quality statutes and the Commission’s rules. The Division issues permits for discharges of pollutants into streams, certifies that federally-issued permits will protect Colorado water quality, evaluates proposals for new or expanded wastewater treatment plants, and administers a non-point source pollution control program.

Neither the Commission nor the Division can take regulatory action that impairs the exercise of a water right. This places a premium on treatment techniques that control pollution at its source, leaving surface and groundwater available and suitable for beneficial uses.

Placing a Call

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Colorado’s prior appropriation system ensures that, in shortages, those with senior water rights can use water before those with junior rights. How do senior holders exercise this right? By placing a call.

Some rivers may not have enough water to meet all the diversions approved by the courts, especially in dry years. When this happens, rights holders can only ask, or call, for the amount of water provided in their decrees, and only for the amount that can be put to beneficial use.

Calls go through the local water commissioner at the Colorado Division of Water Resources. Depending on the system, the call may be verbal or in writing. The water commissioner will verify the call’s legitimacy, and then check upstream to shut down undecreed uses. If there is still not enough water available, the commissioner will limit all users to their decreed amounts of diversion.

If there is still not enough water available, the commissioner will begin using the prior appropriation system. If the user who placed the call has a decree with a 1938 priority date, all users whose decrees came after 1938 would be considered “junior.” Their diversions would be reduced or shut down in order of priority, junior to senior, until the 1938 user’s decreed needs were fulfilled. But if a user with a decree from before 1938 also placed a call, this user would be considered “senior,” and the 1938 user would not receive water until the senior user’s water decree was fulfilled. Any user who does not comply with these curtailments could have his headgate locked by the water commissioner.

The priority date of the river call may change each day, depending on the amount of water available and the seniority of the diversions needed on that day.

The Colorado Division of Water Resources keeps track of all calls for water.

Water Rights

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Obtaining a Decree

Obtaining water rights, especially for large projects, involves a complex process of planning, permitting, engineering, and financing. All water users must intend to put the water requested to beneficial use and demonstrate this intent openly.

Procedures for obtaining decrees vary by situation. Most water users will work with the regional water court, the local Division Engineer’s Office and State Engineer’s Office. A water user must file an application with the regional water court clerk, which will be published in the court’s monthly water resume. A two-month waiting period allows other parties to file statements of opposition.

Engineers from the local Division Engineer’s Office review the application, and the local water commissioner performs field investigations to confirm the claims in the application. The Division Engineer will consult with the water referee and submit a written report to the regional water court.

The next phases of the application process vary depending on the filing of opposition or protest. Obtaining a decree through Colorado’s water courts can be a complex process, though individuals may choose to proceed through the trial of a water case without a lawyer. Corporations may appear before a referee without an attorney, but must have an attorney when appearing before a water judge.

Since the process of obtaining a decree can be lengthy, water users may apply for conditional water rights decrees to unappropriated water, if any remains available. This conditional decree holds a date in the priority system, which is then finalized or made “absolute” when the water is actually put to beneficial use.

The Colorado Courts webpage contains application forms and instructions for the various types of water applications, as well as the applicable rules for water court proceedings,  water court forms, and the non-Attorney’s Guidebook to Colorado Water Courts.   

Change, Sale, and Transfer of Water Rights

Colorado water law provides a market for water rights. A water right holder may change the water right to another type and place of use, retaining its priority date. However, the change is:

1. Subject to obtaining a court decree

2. Measured by the decreed water right’s historical beneficial consumptive use in time

3. Must include conditions preventing enlargement of the water right and injury to other water rights.

The Legislature established authority for water banks in each of Colorado’s seven water divisions. This legislation allows a farmer to lease, loan, or exchange legally stored water for payment, without losing the water right or permanently selling it. Direct flow water rights are not included in the bank, only storage rights. The Legislature has also allowed the water courts to decree crop rotational management plans for leasing water, as an alternative to permanent water transfers.

Colorado's Water Courts

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Colorado district courts have the duty of setting water rights priority dates and amounts. These water courts…

  • Set the priority date for water rights decrees, based on the year in which the application is filed and, within that year, the date when the water appropriation was initiated.
  • May not choose between different types of beneficial use when decreeing water rights; they are generally not allowed to deny applications based on public interest or environmental grounds.
  • Review cases of reasonable diligence for conditional water rights, changes of water rights, exchanges and augmentation plans and appeals from certain State or Division Engineer actions, such as enforcement orders and approvals of temporary changes of water rights and substitute supply plans.
  • Have jurisdiction to review cases where State and Division Engineers have refused to enforce reductions or shutdowns of undecreed or junior water rights after a “call” was placed by a senior water right.

In 1969, the Legislature created seven water divisions based on the major watersheds of the state. The water court for each division is headquartered in the following locations:

  • Division 1: Greeley – South Platte River Basin   
  • Division 2: Pueblo – Arkansas River Basin   
  • Division 3: Alamosa – Rio Grande River Basin   
  • Division 4: Montrose - Gunnison, Little Dolores portions of the Dolores River and San Miguel River Basins
  • Division 5: Glenwood Springs – Colorado River Mainstem   
  • Division 6: Steamboat Springs - Yampa, White and North Platte River Basins   
  • Division 7: Durango – San Juan River Basin and portions of the Dolores River,

Each water court publishes a monthly resume of the applications it has received. To learn more about pending water cases by reading the resumes, click the individual water divisions above.

Owners of water rights may file a statement of opposition to any water right application they think might cause injury to their water rights. They must file a statement of opposition within 60 days of when the notice of the application appears in the resume. Colorado law does not generally allow opposition on public interest or environmental grounds.

Stretching Every Drop

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Overappropriation

Water is not an unlimited resource. If too many people wish to use water from a source, it can become overappropriated. A watershed, stream segment, or aquifer is considered overappropriated if there is no remaining water available to fill new appropriations without causing injury to existing water rights.

Water availability must account for the natural water supply available from year to year and existing obligations, including the amount already claimed by senior water rights and interstate compacts.

By the late 1960s, if not before, it became apparent that the South Platte, Rio Grande and Arkansas rivers within Colorado were reaching overappropriation status. This spurred increased use of groundwater, conservation, reuse of imported water, change of agricultural rights to municipal use, water exchanges, and augmentation plans.

Exchanges

A water exchange can occur within the prior appropriation system. An exchange allows an upstream diverter to take water a downstream diverter would otherwise receive, if the water is replaced at the time, place, quantity and suitable quality the downstream diverter enjoyed before the exchange.

Augmentation Plans

An augmentation plan is a court-approved plan designed to protect senior water rights, while allowing junior water rights to divert water out of priority and avoid State Engineer shutdown orders.

Augmentation plans are required for diversion of water when there is no unappropriated water available, in all watersheds that are overappropriated during at least part of the year. These plans allow for out-of-priority diversions by replacing the water that junior water users consume. The replacement water must meet the needs of senior water rights holders at the time, place, quantity and suitable quality they would enjoy without the out-of-priority diversion. Replacement water may come from any legally available source and be provided by a variety of means. Some augmentation plans use storage water to replace depletions. Others include the use of unlined irrigation ditches and ponds during the non-growing season to recharge the groundwater aquifers that feed the river.

Applications for augmentation plans must be filed with the regional water court.

Return Flows

Return flows are water that returns to streams, river, or aquifers after it has been applied to beneficial use. Some examples of return flows include: water that percolates below the roots of a crop and into shallow groundwater, water seeping from unlined ditches, or discharges from wastewater treatment plants. Return flows are important for satisfying water rights downstream and delivering water for interstate compacts. They also provide instream flows, the water left in streams and other water bodies to preserve the natural environment to a reasonable degree.

Claiming and Accessing Water

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How much water can a user claim?

A water user may not take from the stream any more water than is needed for beneficial use at the time the actual diversion is made. (Diverting more than is needed is considered wasting water.) Need includes not only the amount required by actual use, but also the amount required to move water to the place where it will be used. Water loss may occur through evaporation and travel.

Access to land for water 

Due to Colorado's climate and geography, water is often put to use far from its original source. This requires transfer of water, often across great distances, through canals, ditches and pipelines. Water must also be collected and stored for future use, typically in reservoirs. These water facilities must be maintained.

The right to cross another person’s land to construct, maintain, and operate a water facility has always been an essential feature for obtaining and maintaining a water right. Those who interfere with the operation of a water facility, damage it, or prevent access for those who own the structure, are subject to trespass lawsuits, payment of damages and restoration of the structure.

In applying for a water right, the applicant must have the necessary legal interest in the land where the water facilities will be built, or show that he or she can obtain it. Consent for federal land is usually obtained through a permit process.

Beneficial Use of Water Rights

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Claiming a Water Right Requires Planned Beneficial Use

All surface and groundwater in Colorado belongs to the public, but holders of water rights may use this public resource. A water right is a special kind of property right that allows the holder to use a resource without actually owning it. The holder of a water right may be a private person, a public agency, or a business. In order to claim a water right and divert water, the user must put the water to beneficial use.

Colorado broadly defines beneficial use as a lawful appropriation that employs reasonably efficient practices to place water to use. This ensures against water waste, so that the water resource is available to as many as possible.

Appropriation was originally understood to mean diverting water from a stream for some human purpose. Originally, this would be a consumptive use (where the water is permanently withdrawn from its source) such as water for drinking, irrigation, or mining. Over time, Coloradans’ changing economic and community values have led to new uses being considered “beneficial.” Recognized beneficial uses under the prior appropriation doctrine now include, among others:

  • Augmentation
  • Colorado Water Conservation Board instream flows and natural lake levels
  • Commercial
  • Domestic
  • Dust suppression
  • Evaporation from a gravel pit
  • Fire protection
  • Fish and wildlife culture
  • Flood control
  • Industrial
  • Irrigation
  • Mined land reclamation
  • Municipal
  • Nature centers
  • Power generation
  • Produced water from gas production
  • Recreation on reservoirs
  • Recreational in-channel diversions
  • Release from storage for boating and fishing
  • Snowmaking
  • Stock watering

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