C150150 Market Report

• Contract/PO #: C150150
• Contractor Name: Lower Arkansas Water Management Association
• Contract Type: Loan
• Water District: 67
• County: Bent
• Loan Projects - Doc Type: Feasibility Study

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An owner of a water right may apply to the water court for detennination with respect to a change
of water right. Before the water court may grant an application for change in point of diversion, the
applicant must demonstrate that the proposed change will not injuriously affect the vested water rights or
decreed conditional water rights of other water users. Junior appropriators have a vested right to the
continuation of stream conditions as they existed at the time of their appropriation, with the result that an
application for a change of point of diversion is always subjectto the limitation that a change may not injure
junior appropriators. Therefore, an appropriator has no right as against a junior appropriator to divert more
water than has been benefIcially used or to extend the time of diversion to irrigate lands other than those
for which the appropriation was made. A senior appropriator may not, as against junior appropriators,
lend, rent, or sell any excess water after completing the irrigation oflands for which the water was
appropriated.

Likewise, the right to change a water right is generally limited in quantity by the historical use of the
water right at the originally-decreed point of diversion. The right to change a water right is also limited in
quantity to the duty of water with respect to the originally-decreed place of use. The duty of water has
been defined as:

that meaSure of water by careful management and use, without wastage,
as reasonably required to apply to any given tract ofland for such a period
of time as may be adequate to produce therefrom the maximum amount
of such crops as are ordinarily grown thereon.

This is not a hard and fas~ unit of measurement, but is variable according to the conditions. The historical
use of a water right may be less than the duty of water if, for example, a system is water short. Thus, in
any change of water rights proceeding, diversions at the new point of diversion or for a new use will
necessarily be limited by the historical use that would have occurred under like hydrologic conditions at the
original point of diversion and place of use. Moreover, in the Arkansas River Basin, the historical use of
surface water rights may have been reduced as a result of unreplaced junior well depletions. With the
replacement of those well depletions, the amount of water available in priority to those water rights may
increase. Thus, any evaluation ofhistorical use must also consider additional diversions and consumption
that could have occurred historically had junior ground water diversions not reduced the supply
available to the surface water right.

For purposes of Keesee Ditch historical use, its decree states that 1,400 acres may be irrigated.
Although the HI Model used higher acreages, for purposes of this appraisal, the decreed 1,400 acres is
assumed to be the greatest number of acres that may be lawfully irrigated with the water rights. See Matter
ofStefJens, 756 P.2d 1002 (Colo. 1988). All calculations of Keesee Ditch consumptive use rely upon
this assumption.

In order to prevent injury, it is generally necessary to ensure that the historical return flow pattern
remains the same. Maintenance of historical return flow also helps to protect against an enlargement in
consumptive use to the detriment of other vested water rights. Thus, in any transfer of an agricultural water

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