Arkansas Basin_Water Supply and Needs

Home Browse Search

Section 4 Legal Framework for Water Use Division Engineer.18 If a water right is not placed to beneficial use for an extended period of time, and an intent to abandon the water right is demonstrated, the right may be lost. 19 Thus, beneficial use limits the quantity of water initially allocated under individual water rights, ensures, through administration, that the amount of water used under a water right over time remains limited to the amount actually needed, and conserves water for other uses and users. 4.1.1.3 Maximum Utilization Colorado courts have held that water should be allocated and administered in a way that promotes the "maximum utilization" of the resource.20 This principle was formulated in reliance on Article XVI, Section 6 of the Colorado Constitution, which states "[the right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied."21 Maximum utilization has been applied by the courts in two ways: (1) to require an efficient means of diversion with the purpose of making more water available to other water users; and (2) to support of the adoption of statutory tools allowing flexible administration, including, for example, augmentation plans, exchanges, and the "futile call doctrine." Augmentation plans promote maximum utilization by allowing junior appropriators to divert out-of-priority, while protecting seniors from injury by replacing all out-of- priority depletions. 22 18 See S 37 -92-502(2)(a) "Each division engineer shall order the total or partial discontinuance of any diversion in his division to the extent that the water being diverted is not necessary for application to a beneficial use[.]" 19 See City & County of Denver v. Middle Park Water Conservancy District, 925 P.2d 283, 286 (Cob.1996). 20 See Fellhauer v. People, 447 P.2d 986, 994 (Cob. 1968). 21 See id. at 994 ("It is implicit in these constitutional provisions that, along with Vested rights, there shall be Maximum utilization of the water of this state") (capitalization in original); see also CR5. S 37- 92-102(1 )(a) (Under the "basic tenets of Colorado water law," the legislature has codified the doctrine of maximum utilization, declaring that "it is the policy of this state to integrate the appropriation, use, and administration of underground water tributary to a stream with the use of surface water in such a way as to maximize the beneficial use of all of the waters of this state") (emphasis added). 22 See C.R.S., S 37-92-501.5, requiring the State Engineer to "exercise the broadest latitude possible in the administration of waters under their jurisdiction to encourage and develop augmentation plans and voluntary exchanges of water. . . in order to allow o :\SHAWN\ARKANSAS\S4_ARKANSAS. DOC Water exchanges also promote maximum utilization. Under an exchange, a substitute supply of water is made available to a downstream senior appropriator and an equal amount of water is then taken at an upstream point of diversion. Exchanges facilitate the movement of water to promote maximum utilization. Like augmentation plans, the "futile call doctrine" also allows junior water users to divert out-of-priority under certain circumstances. Under this doctrine, a junior water user will be curtailed only if such curtailment actually makes water available to a senior water user calling for water.23 This allows juniors to continue diverting in times of scarcity, even if a senior is not receiving its whole entitlement, if curtailment of the junior would not allow any additional water to reach the senior. 4.2 Specific Tools for Addressing Water Needs There are a number of specific tools within the current legal framework of the Priority System that can be used to address various water supply needs. These specific tools include the following. 4.2.1 Water Storage Rights There are two different types of water rights - direct flow water rights and storage water rights.24 Direct flow rights allow a water user to divert water for immediate use, while storage rights allow a water user to divert water and store it to make a beneficial use at a later time. Storage rights, like other water rights, are assigned a priority and must be exercised without injury to other water rights.25 Storage rights are obviously a very important mechanism for ensuring that water supplies will be adequate in times of drought. Moreover, reservoirs provide year-round water when stream levels continuance of existing uses and to assure maximum beneficial utilization of the waters of this state." 23 See CR5., SS 37-92-1 02(2)(d) ("No reduction of any lawful diversion because of the operation of the priority system shall be permitted unless such reduction would increase the amount of water available and required by water rights having senior priorities"); and 37 -92-502(a) ("Each division engineer shall order the total or partial discontinuance of any diversion in his division. to the extent that the water being diverted is required by persons entitled to use water under water rights having senior priorities, but no such discontinuance shall be ordered unless the diversion is causing or will cause material injury to such water rights having senior priorities"). 24 CR5. S 37-87-101 251d CDIVI 4-3