Case No. 90SA514 Memorandum Brief of NCWCD in Support of Affirmance of Water Court Decision

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Ch. 346 WATER AND IRRIGATION 1367 can be distinguished from the volume of the streams into which it is intro- duced. Nothing in this section shall be construed to impair or diminish any water right which has become vested. (2) TO THE EXTENT THAT THERE EXISTS A RIGHT TO MAKE A SUCCESSION OF USES OF FOREIGN, NONTRIBUTARY, OR OTHER DEVELOPED WATER, SUCH RIGHT IS PERSONAL TO THE DEVELOPER OR HIS SUCCESSORS, LESSEES, CONTRACTEES, OR ASSIGNS. SUCH WATER, WHEN RELEASED FROM THE DOMINION OF THE USER, BECOMES A PART OF THE NATURAL SURFACE STREAM WHERE RELEASED, SUBJECT TO WATER RIGHTS ON SUCH STREAM IN THE ORDER OF THEIR PRIORITY, BUT NOTHING IN THIS SUBSECTION (2) SHALL AFFECT THE RIGHTS OF THE DEVELOPER OR HIS SUCCESSORS OR ASSIGNS WITH RESPECT TO SUCH FOREIGN, NONTRIBUTARY, OR DEVELOPED WATER, NOR SHALL DOMINION OVER SUCH WATER BE LOST TO THE OWNER OR USER THEREOF BY REASON OF USE OF A NATURAL WATER COURSE IN THE PROCESS OF CARRYING SUCH WATER TO THE PLACE OF ITS USE OR SUCCESSIVE USE. Section 3. 37 -87 -101, Colorado Revised Statutes 1973, is amended to read: 37 -87 -101. Right to store waters. (1) Persons desirees DESIRING to con- struct and maintain reservoirs for the purpose of storing water have the right to store therein any of the unappropriated waters of the state not thereafter needed for immediate use for domestic or irrigating purposes, and to con- struct and maintain ditches for carrying such water to and from such reser- voirs, and to condemn lands required for the construction and maintenance of such reservoirs and ditches in the same manner as now provided by law; except that after April 18. 1935, the appropriation of water for any reservoirs ;ereaker constructed when decreed, shall be superior to an appropriation of water for direct application claiming a date of priority subsequent in time to that of such reservoirs. (2) UNDERGROUND AQUIFERS ARE NOT RESERVOIRS WITHIN THE MEANING OF THIS SECTION EXCEPT TO THE EXTENT SUCH AQUIFERS ARE FILLED BY OTHER THAN NATURAL MEANS WITH WATER TO WHICH THE PERSON FILLING SUCH AQUIFER HAS A CONDITIONAL OR DECREED RIGHT. Section 4. 37 -92 -102 (1), Colorado Revised Statutes 1973, is amended to read: 37 -92 -102. Legislative declaration. (1) (a) It is hereby declared to be the policy of the state of Colorado that all waters WATER IN OR TRIBUTARY TO NATURAL SURFACE STREAMS originating in or flowing into this state whets famed eft the sur€eee er- un mod. have always been and are hereby declared to be the property of the public, dedicated to the use of the people of the state, subject to appropriation and use in accordance with lw SECTIONS 5 AND 6 OF ARTICLE XVI OF THE STATE CON- STITUTION AND THIS ARTICLE. As incident thereto. it is the policy of this state to integrate the appropriation, use, and administration of under- ground water tributary to a stream with the use of surface water in such away as to maximize the beneficial use of all of the waters of this state.