PUB00105

• Year: 1999
• Title: Conference Proceedings: 24th Annual Gunnison Water Workshop
• CWCB Section: Administration
• Description: Theme of the workshop was Garden of Dreams v. High-Desert Reality
• Publications - Doc Type: Other

VIII.

Requirements for a Conditional Water Right

A. An appropriation consists of: (I) an intent to appropriate water for application to
beneficial use; and (2) an overt manifestation of that intent through physical acts
sufficient to give notice to third parties. Citv and County of Denver v. Northern
Colorado Water Conservancy District, 276 P.2d 992 (Colo. 1954).

B. c.R.S. S 37-92-305(9)(b) requires an applicant for a conditional water right to prove
"by a preponderance of the evidence" that its proposed water project is feasiblc, i.c.,
that it "can and will" be completed and the water applied to beneficial use within a
reasonable period of time. Relevant factors include ownership or right of use of the
land necessary for the project, engineering feasibility (including water availability),
economic feasibility, and environmental feasibility. See Application of Board of
County Commissioners of Arapahoe County. 891 P.2d 952 (Colo. 1995).

C. To maintain a conditional water right, one must obtain a finding of reasonable
diligence fTom the water court every six years, or forfeit the right. The measure of
reasonable diligence is the steady application of effort to complete the appropriation
in a reasonably expedient and efficient manner. C.R.S. S 37-92-301(4).

IX.

Changes of Water Rights: Exchanges and Augmeutation Plans

A. Any "change" in the source, quantity, point of diversion, place of use, or typc of use
of a water right must be adjudicated and approved by the water court. See C.R.S.
S 37-92-103(5).

B. Water can effectively be moved upstream by an "exchange," whereby water may be
diverted and used upstream so long as the same quantity of water is provided at a
point downstream which will avoid injury to downstream senior users. See c.R.S.
S 37-80-120(2).

C. An "augmentation plan" is a judicially-approved program to increase the supply of
water available for beneficial use by the development of new or alternate means or
points of diversion, by a pooling of water resources, by water exchange projects, by
providing substitute supplies of water, by the development of new sources of water,
or by any other appropriate means. See C.R.S. S 37-92-103(9). This allows junior
appropriators to continue to divert out of priority. However, they must replace the
resulting depletions to the stream with water from another reliable source in a

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