University of Colorado Law Review Volume 55 Issue 3 Spring 1984

• Description: Plans and Studies: The Recent Quest for a Utopia in the Utilization of Colorado's Water Resources
• Board Meetings - Doc Type: Other

1984] COLORADO'S WATER RESOURCES 399
C. The Restraints on Developing Water
By far the greatest pre-1970 restraint on developing Colorado
water was the availability of capital. Only federal reclamation dol-
lars were available for large irrigation projects. In the tradition of
Colorado water law, eastern slope irrigators utilized the diversion
method they could afford, a well. Soon so many wells were in use
that regulation was needed. The Water Rights and Adjudication Act .
of 1969 was motivated in large part by the need to bring wells within
the appropriation doctrine.68 Plans for augmentation, a word of art
for using a little surface water to divert a larger amount of ground
water, became a classic Colorado compromise which both accommo-
dated and restrained the use of wells and surface rights through
traditional court proceedings.64 Judicial decisions requiring mainte-
nance by other diverters of the existing water quality occurred, but
only infrequently.65 The federal govenment, in its role as a land-
owner, often imposed conditions on water diversions, including mini-
mum stream flows.68 Wildlife agencies occasionally requested protec-
tion, or replacement, of habitat lost by a project.67 Interstate
compacts and equitable apportionment decisions also imposed re-
straints, such as the stream flow committed at the state line in the
• South Platte Compact,68 the limitations on post-compact storage in
the Rio Grande Basin,68 and the limitations on diversions out of the
North Platte River in Colorado.80 Finally, conservancy districts
could make transmountain diversions only if they constructed com-
pensatory storage.'
In short, as late as the 1960's, there were few restraints on Col-
orado's entrepreneurial water system that did not involve the federal
government's role as financer and landowner or that were not im-
posed by interstate compacts and decisions.
However, in the 1960's, the federal government became more
53. See COLD. REV. STAT. § 37-92-102 (1973).
54. Id.§37-92-307(1973)(repealed 1977).See COLO.DEP'T OF NAT.RESOURCES,THE
COLORADO WATER STUDY, DIRECTIONS FOR THE FUTURE, LEGAL STUDIES, xiv-1 (1979).
55. See Comment, Maximum Utilization Collides with Prior Appropriation in A.B.
Cattle Co. v. United States, 57 DEN. L.J. 103, 104-06 (1979).
56. See City and County of Denver v. Robert Bergland, 695 DEN. L.J. 103 (1979).
57. See,for a recent example,MINUTES OF THE COLORADO CONSERVATION BOARD,Oc-
tober 7, 1982.
58. COLO. REV. STAT. § 37-65-101, art. IV (3) (1973).
59. Id. § 37-66-101, art. VII (1973).
60. Nebraska v. Wyoming, 325 U.S. 589 (1945).
61. COLO. REV. STAT. § 37-45-118(1)(b)(iv) (1973).