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
municipal/industrial users to rotate or fallow crops in
certain years, thereby freeing up water supplies for
municipal/industrial uses during such years. The terms of
any such interruptible supply agreements would vary on
a case-by-case basis, but could potentially allow for
continued agricultural use in some, but not all, years. In
order to be effective, such agreements need to be
sufficiently long-term and reliable for municipal/industrial
users to allow the sale of municipal taps on such basis.
Moreover, any such arrangement would necessarily
require protections to ensure that no expansion of use
could occur to the detriment of junior water rights
holders.
4.3.5 Augmentation Plans
An augmentation plan allows a water user to divert water
out-of-priority from its decreed point of diversion, so long
as replacement water is provided to the stream from
another source, to make up for any deficit to other water
users.43 An augmentation plan, like a change of water
right, must be approved by the water court and is also
subject to the "no injury rule." Accordingly, the 1969 Act
requires substituted water to be "of a quality and quantity
to meet the requirements for which the water of the
senior appropriator has normally been used[.]~~44
As explained by the Colorado Supreme Court in In re
Application of Midway Ranches v. Midway Ranches
Property Owners Association, Inc., 45 "[a]ugmentation
plans implement the Colorado doctrine of optimum use
and priority administration, which favors management of
Colorado's water resource to extend its benefit for
multiple beneficial purposes." Augmentation plans
provide a statutory mechanism for many different types
of water users, big and small, to obtain water when and
where they need it, by using other sources of water to
replace or "augment" the out of priority depletions that
result from their water use. In times of scarcity, an
augmentation plan allows a water user to continue
diverting even under a relativelyjunior priority, so long as
it can provide replacement water to satisfy the needs of
downstream seniors. As noted above, however, under an
augmentation plan, a water user is essentially replacing
the amount of water consumed with a different source of
water. The water user gets credit for the amount of water
it diverts that returns to the stream unconsumed. As a
43 CR5. § 37-92-305(5).
~ Id.
45 938 P.2d 515,522 (Cob. 1997).
C~A
result, increased efficiency of use under an augmentation
plan potentially reduces the amount of credit a water
user receives for water returned to the stream
unconsumed.
4.3.6 Instream Flows
Under the 1969 Act, the CWCB is authorized to
appropriate water for "minimum stream flows or for
natural surface water levels or volumes for natural lakes
to preserve the natural environment to a reasonable
degree."46 Appropriations for instream flows may only be
made by the CWCB, not by private individuals (however,
it is noted that a few private instream flows were
obtained in the early 1970s upon initial passage of the
statute, but this is no longer allowed under the law), and
must be made within the priority system, consistent with
the restrictions in Sections 5 and 6 of Colorado's
Constitution. The CWCB can also acquire water rights for
instream flows "by grant purchase, donation, bequest,
devise, lease, exchange, or other contractual
agreement." 47
In recent years, Colorado's legislature has expanded the
resources available to the CWCB to protect instream
flows. In 2002, the legislature increased the sources of
funding that the CWCB may use to acquire water for
instream flows, to include "any funds available to it, other
than the construction fund created in section 37-60-121,
for acquisition of water rights and their conversion to
instream flow rights.48 In 2003, the legislature amended
§ 37-83-105, C.R.S., which provides for temporary loans
or exchanges of water between water users in times of
drought without requiring adjudication of a change of
water rights, to allow the CWCB to receive loaned water
for instream flow purposes on a temporary basis, not to
exceed 120 days, in any basin where the Governor has
declared a drought or other emergency.49 Such loans are
subject to a determination by the State Engineer that
other water users will not be injured.
It is essential that the state be able to acquire water
rights for instream flow purposes in order to protect
wildlife and the environment in a prior appropriation state
during times of drought. Since Colorado water law does
not allow the state to consider environmental factors in
46 CR5. § 37-92-102(3).
4~ Id.
48 See id
49 House Bill 03-1320.
~~
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