Laserfiche WebLink
<br />Section 4 <br />Legal Framework for Water Use <br /> <br />sprinkler irrigation), yet still maintain the overall decreed <br />use of irrigation. Although such activities may not require <br />a change of use proceeding in water court, arguably this <br />activity could have a detrimental impact on other water <br />users to the extent that the change in irrigation alters <br />return flows or the CU of a right. <br /> <br />Adjudicating a change of water rights can be time <br />consuming and costly, and formal notification is required <br />by law. Even when no parties object to the change, the <br />process of water court approval takes a minimum of <br />3 months, and often much longer due to the heavy case <br />load of water court judges. If parties do oppose a change <br />case, it can take years to get a change decree approved <br />by the court. In addition to paying attorneys' fees, an <br />applicant for a change of water rights generally must hire <br />an engineering consultant to prepare a report explaining <br />the technical aspects of the change and develop an <br />accounting form for administering the change. In order to <br />avoid these costs and to speed the process, Colorado's <br />legislature recently enacted legislation that authorizes a <br />water right owner to lease water under the right without <br />formal adjudication of change of water right. This <br />legislation is discussed immediately below. <br /> <br />4.2.4 Leases of Water <br /> <br />During the 2003 legislative session, C.R.S. SS 37-80.5- <br />101 to 105 were amended to authorize the State <br />Engineer to create water banks within each water <br />division, and to adopt rules governing their operation. <br />The aim of this legislation is to simplify the process for <br />temporary transfers of water rights by eliminating the <br />adjudication proceedings required for a permanent <br />change of water rights. The statute provides that the <br />rules shall allow for the "lease, exchange, or loan of <br />stored water within a water division," including a transfer <br />to the CWCB for instream flow purposes, without the <br />need to submit to any adjudication proceedings. <br />Notwithstanding the fact that the lease, exchange, or <br />loan is not adjudicated, such arrangements will still be <br />subject to administration by the Division Engineer, within <br />the priority system, to prevent material injury to other <br />water users. <br /> <br />Another area of potential leasing involves agreements <br />between agricultural and municipal/industrial users for <br />interruptible supplies. Although this approach may <br />require obtaining a change of use decree, it would <br />potentially allow flexibility between agricultural and <br /> <br />S:\1177\Basin Reports\South Platte\S4_South Platte.doc <br /> <br />municipal/industrial users to rotate or fallow crops in <br />certain years, thereby freeing up water supplies for <br />municipal/industrial uses during such years. The terms of <br />any such interruptible supply agreements would vary on <br />a case-by-case basis, but could potentially allow for <br />continued agricultural use in some, but not all, years. In <br />order to be effective, such agreements need to be <br />sufficiently long-term and reliable for municipal/industrial <br />users to allow the sale of municipal taps on such basis. <br />Moreover, any such arrangement would necessarily <br />require protections to ensure that no expansion of use <br />could occur to the detriment of junior water rights <br />holders. <br /> <br />4.2.5 Augmentation Plans <br /> <br />An augmentation plan allows a water user to divert water <br />out-of-priority from its decreed point of diversion, so long <br />as replacement water is provided to the stream from <br />another source, to make up for any deficit to other water <br />users.34 An augmentation plan, like a change of water <br />right, must be approved by the water court and is also <br />subject to the "no injury rule." Accordingly, the 1969 Act <br />requires substituted water to be "of a quality and quantity <br />to meet the requirements for which the water of the <br />senior appropriator has normally been used[.]"35 <br /> <br />As explained by the Colorado Supreme Court in In re <br />Application of Midway Ranches v. Midway Ranches <br />Property Owners Association, Inc., 36 "[a]ugmentation <br />plans implement the Colorado doctrine of optimum use <br />and priority administration, which favors management of <br />Colorado's water resource to extend its benefit for <br />multiple beneficial purposes." Augmentation plans <br />provide a statutory mechanism for many different types <br />of water users, big and small, to obtain water when and <br />where they need it, by using other sources of water to <br />replace or "augment" the out of priority depletions that <br />result from their water use. In times of scarcity, an <br />augmentation plan allows a water user to continue <br />diverting even under a relatively junior priority, so long as <br />it can provide replacement water to satisfy the needs of <br />downstream seniors. As noted above, however, under an <br />augmentation plan, a water user is essentially replacing <br />the amount of water consumed with a different source of <br />water. The water user gets credit for the amount of water <br />it diverts that returns to the stream unconsumed. As a <br /> <br />34 CR5. S 37-92-305(5). <br />35 Id. <br />36 938 P.2d 515,522 (Cob. 1997). <br /> <br />CONI <br /> <br />4-5 <br />