30 ‎(3)‎

• Board Meeting Date: 5/21/2008
• Description: IWMD Section - Presentation of Agricultural Water Conservation Paper
• Board Meetings - Doc Type: Memo

Section 5
Legal and Engineering Considerations
In Colorado, a relatively complex set of laws, regulations, and customs pertaining to
the use and transfer of water rights have evolved over time. These laws are a
reflection of the scarcity of water in the region and that streams and rivers were not
always located near the intended place of use. Considering this reality, water rights
depend on use and not on the land where the water is applied. There are a few key
principles of Colorado water law that one must understand when considering the
conservation of agricultural water use.
^ No harm rule
^ A water right is a property right
^ Beneficial use
^ The concept of salvaged and saved water
No Harm Rule/No Injury Rule
Under Colorado water law, water rights can be changed in the type, place, or timing
of use as long as the change does not adversely aff ect other vested water rights,
whether perfected or conditional. Put another way, appropriators are entitled to the
continuation of stream conditions at the time of their appropriation--including return
flows from upstream water users. The doctrine of prior appropriation recognizes a
right of junior appropriators "in the continuation of stream conditions as they existed
at the time of their respective appropriations" (Farmers High Line Canal ~ Reservoir Co.
v. City of Golden). The "No Harm Rule" provides protection to downstream water right
holders f rom injury when a water right is changed in Water Court. The reliance upon
irrigation return flows is a common occurrence in
Colorado; it has been estimated that a drop of water
in the South Platte River is used several times prior
to leaving the state.
yy~ ~ _ do ~ I J .,iii ~ ~ rb,y.~ ~ ~ f4~F
}}Jyy
!" '
' u,< ' ~ ~ d f'~~ t ~ a~
'i -.
~ ,' v ~ -Aim ~ M~
~
.~
~i
~
~
~
~
~aFy, -
'1-
.' I.f~ ~p~u ~j
.~~
..~~ ry~~.
a= e
4
'

_. ~
I
~~l ~ ~ ~~ J. , ~_'Vjh ~ ~.
~ t ~ r '!~•
Y i ~ 7 -
"M *i`
"
1
}'
''' .inc. ~ ~
,
Pad ~ $J~ ~~ ~ ~ g '_ ~' Aa` v+~ ~` } i.
~ t-p ~~ ~rttj r « a ~ 7~. ~ ~ ~ p I~~ ~h a,
f ,:„~fY4~W f Li ` , .^d i~^;, °~ ~~n ~i ~ ~ ~ .~ -~. ~ d1 ~ ~ :a fl
Increasing the efficiency of water use under a valid
water right may not require a formal change of use
proceeding in all instances. For example, an
agricultural user may increase efficiencies to the
delivery of water (e.g., lining ditches, pipelines, or
polyacrylamides) or by on-farm applications (e.g.,
sprinklers, drip systems), yet still maintain the
overall decreed use of irrigation on the same lands.
Water conserved within a given ditch system may in some cases be used within that
ditch system. There are potential legal issues with the irrigation company conserving
water and then giving or selling that water permanently outside of the system.
Although such activities may not require a change of use proceeding in water court,
these types of improvements could have detrimental impacts on other water users to
the extent that the change alters return flows and/ or increases the consumptive use.
DRAFT 5-1