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Alt. Water Transfers

Cover HW Fall 2017

Water sharing and banking, coined "alternative transfer methods" or ATMs, could provide flexibility for stretched water supplies —but not without marked challenges. Read the Fall 2017 issue of Headwaters magazine and explore options to:

  • keep water in farming
  • help municipalities plan ahead
  • share between ag and environmental uses
  • bank water on the Colorado River

Browse articles and find a flipbook of the magazine here.

Connecting the Drops

connectingdropslogo4.1Bringing you the reporting you crave over the radio airways with extras and archives on our website. Visit the audio archives or listen to the latest story on the National Wild and Scenic Rivers Act and the Colorado river that could become the state's second wild and scenic protect river—Deep Creek:

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Water Education Colorado

Colorado Supreme Court Decisions

High Plains and ISG Cases

Change of water rights application requires an identified place of use

Both of these court cases decided by the Colorado Supreme Court in October 2005 address issues of speculation in water rights. Under current law, speculation in water rights is prohibited. An appropriator must have its own use for the water or have a contract to serve customers that the water will benefit. The appropriator must have a plan to divert, store, or otherwise capture, possess, and control the water for beneficial use.

In the High Plains case, a water investment company purchased shares of the Fort Lyons Canal Company which services multiple counties in southeastern Colorado. In the ISG case, a group of individual shareholders already owned shares of the Fort Lyons Canal Company. The two groups sought to change their water rights from irrigation to a variety of potential municipal uses. However, their applications did not specify the end users of the water, or where the water would be put to use.

The water court ruled that the application was so expansive and vague that the court could not determine if other water-rights holders would be injured. Water rights are perfected (made real) by putting water to actual use in a specific place. Even in cases involving changes in the use of the water (from irrigation to municipal use, for example), the Supreme Court explained that a water court cannot approve an application that does not clearly delineate a place of use.

In the ISG case, the Supreme Court discusses water leases and water banks as an alternative to permanent changes of water rights. The Supreme Court ruled that because the application did not specify a place of use, the lower court had properly dismissed the ISG application.

Issues on Appeal

Harmony Ditch Company Case

Augmentation plans and selective subordination

In this case, the Groundwater Management Subdistrict of the Central Colorado Water Conservancy District received water court approval for an augmentation plan. This plan was designed to replace water consumed by approximately 1,000 agricultural wells pumping water out of priority in the South Platte River Basin.

In July 2005, two separate appeals were filed with the Colorado Supreme Court regarding this case, addressing two separate issues. The first appeal was brought by a large group of municipal and agricultural objectors regarding whether an existing statute [C.R.S. 37-92-305(8)] allows the State Engineer, in the normal process of administering water rights based on senior and junior priorities, to curtail out-of-priority diversions allowed by court-approved augmentation plans. The issue at hand is whether the administrative powers of the State Engineer to curtail junior water users can trump court-approved augmentation plans.

No ruling on this specific issue was made by the trial court, but the appellants are appealing to the Colorado Supreme Court for resolution of this important legal issue.

The second appeal is being made by the State Engineer and the city of Englewood. Their appeal deals with selective subordination of water rights. Selective subordination occurs when the owner of a water right agrees to subordinate the priority date of that right to a specific junior water right (or group of junior water rights).

In the Central case, the water court held that selective subordination is not explicitly prohibited, and that subordination may be legally permissible if the subordination agreement contains terms to prevent injury to intervening water rights holders.

The appellants question whether selective subordination agreements can legally be incorporated into the prior appropriation system without a change in existing statutes.

Recent Water Court Cases and Settlements

Recreational In-Channel Diversions

Steamboat Springs
In December 2005, District Water Court Judge Michael O'Hara released his official ruling in favor of water-rights claims by the city of Steamboat for its boating park on the Yampa River. The city was awarded flow rates ranging from 95 cubic feet per second (cfs) in August to 1,400 cfs during peak spring runoff. City officials had filed in December 2003 for recreational in-channel diversion, or RICD, water rights for two kayaking holes: Charlie's Hole and D-Hole.

Many of the initial opposers to the filing were able to come to a settlement in the case before it went to court, including the Routt County Board of Commissioners, local water management agencies, Trout Unlimited, Routt County Farm Bureau and a variety of other individuals and organizations. The remaining objectors at the time of the trial included the Colorado Water Conservation Board and the State and Division Engineers.

According to Colorado Water Conservation Board staff member Ted Kowalski, the board intends to discuss whether it will appeal the decision to the Colorado Supreme Court during its January 24-25 board meeting in Denver.

In 2002, the Upper Gunnison River Water Conservancy District applied for a recreational in-channel diversion water right to support its kayak course on the Gunnison River. Originally, the conservancy district applied for water rights ranging from 270 to 1,500 cfs. In 2003, a water court ruling awarded the district the amounts of water requested.

The Colorado Water Conservation Board and others then appealed the decision to the Colorado Supreme Court.
In March 2005, the court ruled that both the CWCB and the water court erred in the case, and remanded the case back to water court.

However, in December 2005, the CWCB and the Upper Gunnison River Water Conservancy District were able to come to a settlement in the case, with the district agreeing to reduce its requested flows to between 270 and 1,200 cfs.

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