FLOOD00515

• County: Statewide
• Community: State of Colorado
• Title: Water Rights Determination Systems Study CWCB
• Date: 6/1/1987
• Prepared By: CWCB
• Floodplain - Doc Type: Educational/Technical/Reference Information

in increased depletion of the stream. Cli::r.rlJ
courts have emphasized that the
determination of injury is fact specific and
individual to each case. Consequently, even
though the supreme court has considered
numerous cases over the years centering on
the matter of injlU)', there is remarkably little
guidance to be found in these decisions.

Terms and CDnditiiJns

Colorado law encourages transfers of
water rights by providing that injury to other
water rights may be offset by imposing terms
and conditions upon the transfer in the
decree." The statute suggests several types
of terms and conditions, including limitation
on the new use of the water, relinquishment
of a part of the right being changed or of
another related right, and limitations on the
period of diversion." In addition, all change
decrees now must include a condition
providing for judicial reconsideration on the
question of injury for some period determined
to be necessary or desirable:"

In 1989, the Colorado legislature
enacted a law requiring the applicant to
provide a proposed decree to the water court
in any case in which a statement of
opposition has been filed." The proposed
decree is to prevent injury to other water,
rights. This requirement is intended to
encourage discussions between the applicant
and opponents prior to any formal hearing on
the merits of the application.

Burrim of proof

By statute, the applicant for a water
right change carries the burden of showing
that there will be no injurious effect. <7 The
Colorado Supreme Court provided the
following rationale for this rule:

If a change is made, it disturbs
the existing order and manner
of distnbuting water diverted
frOm our natural streams into

w;l!;ating . ditches, which is
performed by public officers,
and causes a modification to
be made in the general
adjudication decree. It is
fitting that a party who asks
such relief should bear the
burden of. proving that the
vested rights of others will not
thereby be infringed if it is
granted. It is only the burden
which is usually imposed upon
the moving party in a lawsuit."

The effect of this requirement is that
the applicant carries the burden of proving a
negative." Perhaps because of the difficulties
inherent in so doing, several decisions
indicate that there may be some requirement
that the protestants demonstrate some
injury." More recent decisions suggest that
the burden on protestants only arises at the
point that an applicant has made a "prima
facie" showing of no injury."

Euhanges and Su.bstiJuted Supplies

Under Colorado law, rights to use
water may be exchanged as well as changed.
As one commentator explains:

Exchange plans can be quite
complicated in operation, but
they rest on a simple concept.
A user diverts water from the
stream at a point which is
physically desirable but at
which the user has no senior
diversion right. This diversion
is legal if the user introduces
an equivalent amount of water
into the stream at another
acceptable location."

This practice developed in the late 1800s in
the Cache La Poudre River and Big
Thompson River valleys in northern Colorado
as a means of better capturing flows in these

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