SB 07-013 Summary

• Description: Legislation
• State: CO
• Basin: Colorado Mainstem
• Water Division: 5
• Date: 1/1/3000
• Author: Colorado River Conservation District
• Title: SB 07-013 Summary
• Water Supply Pro - Doc Type: Publication

law
COLORADO RIVER WATER
_ W hlSERV,ATItDI~I DISTRICT
WI
Protecting Western Colorado Water Since 1 937
SB 07 -013
ISSUE: At issue is the State Engineer's recent, overly -broad interpretation of §305(8). The State Engineer
asserts that this section allows his office to unilaterally curtail court- decreed plans for augmentation even when
the owner of the decreed plan is operating in full compliance with the terms of the decree.
BILL SUMMARY: This bill provides Legislative clarification to existing statutes concerning the reliability
and certainty for decreed plans for augmentation.
BACKGROUND: A "Plan for Augmentation" decree is a water court decree that authorizes out of priority
water diversions so long as the water user fully replaces the water depletions from another source. The water
court is required to place conditions on the plan to ensure other water rights are not injured.
The question presented by the State Engineer's position is whether the water courts or the State Engineer's
Office is responsible for determining injury and the conditions that may be necessary to prevent injury to other
water rights. Under Colorado law, the water courts have exclusive jurisdiction to make determinations related
to water rights, including determinations of injury that may result from a plan for augmentation. Once the
water court has made those determinations and included them as terms of a water right decree, the owner of
that decree must be able to rely on that decree. If the owner is operating in compliance with the court- issued
decree, no one can impose new rules or conditions without going back to the water court.
To date, the State Engineer's Office has only exercised this asserted authority a few times. In a recent case, the
State Engineer stated his interpretation before the supreme court; his interpretation, however, was not at issue
before the court and therefore not ruled on. Accordingly, this bill allows the Legislature to clarify its intent
before there is litigation over the State Engineer's exercise of his interpretation.
Conversely and of equal concern is if the State Engineer has the unilateral authority to curtail diversions to
prevent perceived injury even when the diverter is in compliance with his decree, presumably the Engineer also
has the authority to allow for reductions in augmentation releases, judging that less than the court- decreed
amount is necessary to prevent injury. This clearly puts him in the position that is reserved for the water court
to determine the terms of an augmentation decree. In either situation, water rights owners are not provided the
certainty guaranteed by statute.
CONCLUSION: This bill is provides necessary and appropriate clarification to Colorado statutes supporting
the sanctity of a water court- issued water right decree for a plan for augmentation.
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