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Water Planning & Distribution

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.

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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.

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.

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.

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.

Water Origin Resources

The Citizen's Guide to Where your Water Comes From explains how weather patterns and aquifers supply the water we use. Learn more about the intricate distribution systems Coloradans have developed to deliver water to our farms and cities.  Flip through the online version or purchase a copy.

Citizen s Guide  4a40f4c93383c

The Citizen's Guide to Colorado's Transbasin Diversions highlights the history, costs and benefits of these controversial water projects, from both an historic and current point of view. Flip through the online version or purchase a copy.

Transbasin Diversions

 

  
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