Colorado Water April 2005

• Year: 2005
• Title: Colorado Water
• Author: Water Center of Colorado State University
• Description: April 2005
• Publications - Doc Type: Newsletter

existence by the mid -1930s and to allow for new mu-
nicipal and industrial uses. This additional water supply
was brought in because enough supply was not naturally
available in the native South Platte system, and because
part of the native South Platte Supply must be delivered to
Nebraska under the 1922 South Platte River Compact.
Then let us remember that the large scale drilling of irriga-
tion wells into the tributary aquifers of the South Platte
River occurred in the 1940s to the 1960s. Much productivi-
ty has occurred because of this and many of the water years
we had in the late Twentieth Century, being extraordinary,
put off the inevitable reckoning. When there's enough
water for all, there is no "call."
But the prior appropriation system is designed to respond to
nature's skimpy bounty. That's when the value of a water
right resides in its priority and reliable administration of the
priority system.
When it comes to water, rights are definitely not equal un-
der the prior appropriation system. Some have far greater
value than others. The market for agriculture water in
Colorado, which is quite active in transferring water to mu-
nicipal use, demonstrates that rights with greater reliability
of supply under "call" conditions over an historical period
of time have much better value. You know this. The value
of a farm with a good water right is greater than one with
an unreliable supply.
When a water right is changed to another use through
the water court process, it can be valued by the amount
of water the buyer can realize from the transfer. This is
determined from diversion records, use records, the amount
of historic beneficial consumptive use actually made of
the water right over an historic period of time, and, most
notably, the security of the water right within the priority
system when the call comes on the river.
A good practical article on the subject of ascertaining the
value of a water right in planning a water supply for a client
is Daniel S. Young and Duane D. Helton, Developing a
Water Supply in Colorado: The Role of An Engineer, 3.
3
U. Denv. Water L. Rev. 373 (2000). I like this statement,
in particular, from a user's perspective as seen through the
eyes of the person valuing the water right: "In order for a
water supply to meet the client's objectives, it must provide
enough water to meet the client's water requirements while
not injuring existing water rights." Id. at 382.
Farmers have always been innovative about increasing the
value of their water. Augmentation plans and recharge proj-
ects have been pioneered by Coloradans right here on the
South Platte River. I had the privilege of recognizing this in
a 2002 opinion I wrote.
The General Assembly intended the 1969 Act's
provision for augmentation plans to allow out -of-
priority diversions to facilitate new water uses in
over - appropriated stream systems. See Empire
Lodge, 39 P.3d at 1155. Augmentation plans
include filling subsurface porous spaces with water
by injection or artificial water spreading structures,
such as unlined ditches and recharge ponds that
utilize water appropriated for that purpose, and then
re- extracting the stored water or taking
credit for the appropriated water's return to the
natural river system through underground forma-
tions extending through the lands of others. See.
James W. Warner, Jon Altenhofen, Jack Odor,
& Brandon Welch, Recharge as Augmentation in
the South Platte River Basin, Department of Civil
Engineering, Groundwater Program Technical
Report No. 21, Colorado State University (March
1994).
Board of Countv Commissioners v Park County-
Sport nen's Ranch, 45 P.3d 693, 609 (2002).
A junior water right properly augmented is a very valuable
water right because it allows well pumping to be made out
of priority and therefore exempt from curtailment. Sure it
will cost, and whether it can be done for everyone is surely
an economic and water availability question. But, whether
the cost is worth it has always been the ultimate test of the
utility of any ditch, reservoir, or well since the founding of
Colorado Territory in 1861, especially in eastern Colorado.
Colorado's water scarcity is both natural and legal.