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Last modified
7/14/2009 5:02:35 PM
Creation date
5/24/2009 7:17:25 AM
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UCREFRP
UCREFRP Catalog Number
9476
Author
Colorado Foundation for Water Education.
Title
Citizen's Guide to Colorado Water Law.
USFW Year
2003.
USFW - Doc Type
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1Nater Rights and Decrees <br />ture of Colorado water law. Maintenance <br />may include activities such as cleaning of <br />ditches, weed control, or monitoring water <br />diversions, among others. <br />Those who interfere with the operation <br />of a water facility damage it, or prevent <br />access for those who own the structure, are <br />subject to trespass lawsuits, payment of <br />damages, and restoration. of the structure. <br />If applying for a new water right, the <br />applicant must have the necessary legal <br />interest in the land where the water facili- <br />ties will be built, or show that he or she <br />can obtain it_ If the landowner does not <br />consent, the Colorado Constitution and <br />statutes pro~~ide a private right of condem- <br />nation across the lands of others for the <br />construction and operation of water facili- <br />ties, such as pipelines and reservoirs, upon <br />payment of just compensation to the <br />property owners. <br />Consent is also typically required <br />when a governmental entity owns the <br />land. This is usually obtained through a <br />permit process. <br />Exchanges <br />A water exchange can occur within the <br />prior appropriation system. An exchange <br />allows an upstream diverter to take water a <br />downstream diverter would otherwise <br />receive, if the water is replaced at the time, <br />place, quantity, and suitable quality the <br />downstream diverter enjoyed before the <br />exchange. The four critical requirements for <br />a water exchange are: (1) the source of sub- <br />stitute water supply must be upstream of <br />the senior diversion calling the water; (2) <br />the substitute water supply must be equiv- <br />alent in amount and of suitable quality for <br />the downstream senior; (3) substitute water <br />must be from legally available flows; and <br />(4) the water rights of others cannot be <br />injured when implementing the exchange. <br />Court approval of an exchange assigns <br />it a priority in relation to other water <br />rights and exchanges operating in the <br />same stream reach. But, the State Engineer <br />may allow a water exchange without a <br />Historical Excess in Granting Conditional Decrees <br />Brings About the "Can and Will" Requirement <br />Historically=, many early conditional water right decrees awarded in Colorado <br />were in excess of the amount necessary for the petitioner's true beneficial use. <br />Old decrees may have allowed for dig°ersion amounts not actually available <br />under natural conditions, or did not take into account the fact that senior water <br />rights were already diverting and using all of the available water. Some decrees <br />even went so far as to grant more water than a particular ditch could carry. <br />In 1979 the General Assembly adopted the "can and will" requiremem for <br />conditional water rights decrees. it requires the applicant to show that there is <br />unappropriated water available, and that the applicant can and will place the <br />water to a beneficial use with diligence and within a reasonable time. <br /> <br />court decree, if water is available in prior- <br />ity and the exchange will not cause injury <br />to other water rights. A water exchange <br />may decrease water flows into a particular <br />stream segment in return for placing the <br />water in another stream segment. <br />Change, Sale, and Transfer <br />of Water Rights <br />Colorado water law provides a market <br />for water rights. A water right holder may <br />change the water right to another type and <br />place of use, retaining its priority date. <br />However, the change is (1) subject to <br />obtaining a court decree, (2) measured by <br />the decreed water right's historic beneficial <br />consumptive use in time and quantity, and <br />(3) must include conditions preventing <br />enlargement of the water right or injury to <br />other water rights. <br />A critical component of the change of <br />water right procedure is measurement in <br />acre-feet of the amount of water historical- <br />ly put to beneficial consumptive use. No <br />more than that amount of water consumed <br />under the prior right may be consumed <br />under the changed right. In this way, the <br />new right removes from the stream system <br />no more water than was consumed benefi- <br />cially by the old. However, given condi- <br />tions in the decree to protect against injury <br />to other water rights, the priority date of <br />the decreed original right will still be <br />maintained so that it may be utilized in <br /> <br />different uses and locations. <br />In 2001, the Legislature adopted a <br />pilot water bank program in the Arkansas <br />River Basin and required the State <br />Engineer to adopt rules for operation of <br />the bank. This legislation allows a farmer <br />to lease, loan, or exchange legally stored <br />water for payment, without losing the <br />water right or permanently selling it. The <br />legislative sponsors hoped that experience <br />with the pilot water bank would lead to a <br />statewide water bank and expansion to <br />include direct flow rights. <br />C I T I Z E N S G U I D E T^ C^ L D R A D ^ W A T E R LA W 1 S <br />
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