S4_11-15-04

• Basin: Statewide
• Title: SWSI Phase 1 Report - Section 4 Legal Framework for Water Use
• Date: 11/15/2004
• Author: CWCB
• SWSI - Doc Type: Final Report

Section 4
Legal Framework for Water Use
portions of the decree affecting Colorado limit total
irrigation in Jackson County to 145,000 acres and
17,000 AF of storage for irrigation during any one
irrigation season. It also limits total water exports from
the North Platte River in Colorado to no more than
60,000 AF during any 10-year period.
Wyoming vs. Colorado, 260 U. S. 1(1922) and
309 U. S. 572 (1940)
The Wyoming vs. Colorado U.S. Supreme Court Decree
establishes the right of Colorado and Wyoming to water
in the Laramie River Basin. Those portions of the decree
affecting Colorado limit total diversions from the Laramie
River in Colorado to a total of 39,750 AF, divided among
specific water facilities, including 15,500 AF through the
Laramie-Poudre Tunnel; 18,000 AF through the Skyline
Ditch; and 4,250 AF through various "meadow land
appropriations."
Sand Creek Memorandum of Agreement (1939 and
revised 1997)
This Memorandum of Agreement between Colorado and
Wyoming allocates the waters of Sand Creek between
the states in accordance with the priority water rights in
each state and provides for certain minimum deliveries to
the state line by Colorado, if physically available and
needed for irrigation in Wyoming.
4.3 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.
4.3.1 Water Storage Rights
There are two different types of water rights - direct flow
water rights and storage water rights.33 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.34 Storage rights are obviously a very
important mechanism for ensuring that water supplies
will be adequate in times of drought. Moreover,
33 CR5. § 37-87-101
34 Id
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reservoirs provide year-round water when stream levels
drop following the snow melt each year.35 Over the
years, there have been numerous water storage projects
undertaken by Colorado irrigation districts, water
conservation districts, M&I water providers, and the
federal government.3s
4.3.2 Conditional Water Rights
A conditional water right is defined in the 1969 Act as "a
right to perfect a water right with a certain priority upon
the completion with reasonable diligence of the
appropriation upon which such water right is based."37 A
conditional water right allows an appropriator to secure a
place in the priority line before any water is actually
applied to beneficial use. To obtain a conditional water
right, the applicant must show that the "first step"
towards the appropriation has been taken. The "first
step" includes the intent to appropriate, plus a
demonstration of that intent through "physical acts
sufficient to constitute notice to third parties."38 Once the
appropriator actually places the water to beneficial use,
an absolute decree may be issued with a priority date
relating back to the date the appropriation was initiated
through the "first step."
As explained by the Colorado Supreme Court in Public
Service Co. vs. Blue River Irrig. Co.,39 a conditional
water right "encourage[s] development of water
resources by allowing the applicant to complete
financing, engineering, and construction with the
certainty that if its development plan succeeds, it will be
able to obtain an absolute water right." Conditional water
rights are crucial to large-scale development projects,
including most transmountain diversions and storage
projects, because they allow an appropriator to secure a
priority and protect its investment when water cannot
immediately be placed to beneficial use.40 Thus,
conditional water rights are a tool that may be used to
complete major water projects, including storage
reservoirs, transmountain diversion projects, or pipelines
to meet water needs.
3s See Hobbs, I U. Deny. Water L. Rev. 1 at 13, supra
3s See id. (for discussion of 1902 Reclamation Act and reclamation
storage projects in Colorado).
37 C.R.5.§ 37-92-103(6)
3e City of Aspen v. Colorado River Water Conservation Dist., 696 P.2d
758, 761 (Cob. 1985).
39 753 P.2d 737, 739 (Cob. 1988).
40 See Uranesh, supra at 99.
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