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Section 5 <br />Legal and Engineering Considerations <br />In Colorado, a relatively conlplex set of laws, regulations, and custonls pertaining to <br />t11e use and transfer of water rights have evolved over tin1e. These laws are a <br />reflection of the scarcity of water in the region and t11at streanls and rivers were not <br />always located near the intended place of use. Considering this reality, water rights <br />depend on use and not on the land where the water is applied. There are a few key <br />principles of Colorado water law that one nlust wlderstand when considering t11e <br />conservation of agricultural water use. <br />^ No harnl rule <br />^ A water right is a property right <br />^ Beneficial use <br />^ The concept of salvaged and saved water <br />No Harm Rule/No Injury Rule <br />Under Colorado water law, water rights can l~e changed in the type, place, or timing <br />of use as long as the change does not adversely affect other vested water rights, <br />whether perfected or conditional. Put another way, appro~riators are entitled to the <br />contuzuation of stream conditions at the time of their appropriation--including return <br />flows from upstreanl water users. The doctrine of prior appropriation recognizes a <br />right of junior appropriators "u1 the continuation of streanl conditions as they existed <br />at fl1e tinle of their respective appropriations" (F~~t~rriers Hig11 Line C~~n~l F~ Reserz~oir Co. <br />v. Cit~ of Golr~en). The "No Harn1 Rule" provides protection to downstream water rigllt <br />1lolders from injury when a water rigllt is changed in Water Court. The reliance upon <br />- ~ irrigation return flows is a conlnlon occurrence uz <br />Colorado; it has been estimated that a drop of water <br />in the South Platte River is used several tinles prior <br />to leaving the state. <br />Increasing t11e efficiency of water use under a valid <br />water right inay not require a fornlal change of use <br />proceedulg in all instances. For example, an <br />agricultural user may increase efficiencies to the <br />delivery of water (e.g., lining ditches, pipelines, or <br />polyacrylamides) or by on-farm applications (e.g., <br />sprinklers, drip systenls), yet still nlaintain the <br />overall decreed use of irrigation on the sanle lands. <br />Water conserved withul a given ditch system may in sonle cases be used within that <br />ditch systenl. There are potential legal issues with the irrigation conlpany conservulg <br />water and then givulg or selling that water permanently otrtside of the systenl. <br />Alfllougll such activities nlay not require a cllange of use proceeding in water court, <br />these types of improvements could have detrinlental impacts on other water users to <br />the exteilt t11at fl1e chailge alters return flows and/or ulcreases the consunlptive use. <br />DRAFT 5-1 <br />