FLOOD01948

• County: Jefferson
• Community: Denver, Lakewood
• Stream Name: Sanderson Gulch, Weir Gulch
• Title: Major Drainageway Planning
• Date: 8/1/1972
• Prepared For: Jefferson County
• Prepared By: UDFCD
• Contract/PO #: &&
• Floodplain - Doc Type: Floodplain Report/Masterplan

REGeLATIO~ OF EXISTING CH&~~EL fEATURES ny
THE STATE ENGI~EER

small reservoirs the basic design defect has to do with spillway
inadequacy. Even if tho reservoirs were maintained empty, a
flood peak might fill and overtop the reservoir. It is not
clear that the State Engineer could compel adequate spillway
construction on small dams, although he could put force to bear
sO that that result might obtain. In any event, it is clear
that the ultimate remedy can only result from negotiation.
The option which an owner has to abandon and destroy his t"ese;r-
vail' is undeniable, even though not in the interest af flood
pt"otection. In a condemnation or partial condemnation situation,
devaluation of a stt"ucture by the effect of State Engineer
regulation might become an important weapon of the District.
OTHER METHODS OF CO~TROLLING EXISTING CHAN~EL FEATURES

The State Engineer is statutorily charged with the regulation
of darns and reservoirs to insure their safety. C.R.S. 1963,
Sec. 148-5-1, et~. Although submission of plans and specifi-
cations is preOIcated on certain sizes of reservoirs, Sec. 148-5-5,
(dam taller than 10 feet, surface at"ea larger tha~ 20 acres,
or capacity larger than 1000 acre feet), safety regulation of
existing reservoirs would appear to he statutorily independent
of reservoir size. Sec. 148-5-7 and Sec. 158-5-8. However,
the State Engineer's Office takes the position that its juris-
diction in general is confined to reservoirs in excess of the
size requirements of Sec. 148-5-5.

By way of example, Clair field and Bit-O-Sea reservoirs are
both probably small enough that plans and specifications were
never required. It is not known whether either of these has
decreed water rights. However, the safety of both structures
is brought into question because of inadequate spillway and
freeboard size. In some flOod less than 100 year ft"equency
overtopping and, presumptively, failure will occur. Under
Sec. 148-5-7, the State Engineer should determine what amount
of storage would be required to be kept available in order to
prevent overtopping by predictable floods. Whether or not he
will in fact regulate such structures will depend on his inter-
pretation of Sec. 148-5-7 and 8. The question has been raised
with his office in a general way and we are awaiting a general
rc~ponse to our contention.

It appears clearly that the optimum mode of assuring control of
existing detention devices is by express agreement with the
structure's owner. It is sometimes argued that the existence
of rights and liabilities under regulation by the State Engineer
and the zoning entity confers a measure of control on the public,
presumably on the Di>;tt"ict ai> the flood control entity. The
existence of the drainage servitude, thought of as an easement
by case law, is ~rgued to give control over those who build
across the easement. It is our opinion, however, that these
contentions fall short of conferring the level of certainty
and dependability required by a pUblic entity. We think that
any rights Claimed by the district should be set down in re-
cordaole docurecnts.

We recommend the presentation of a concrete fact situation
to the State Engineer in he<lring to sharpen the issue. The
process ,,",ould be initiated under the terms of 5,-,c. 148-5-9
~roviding for a complaint by some person hav~ng property en-
dangered by the structure. A well-documented presentation showing
the general nature of the District's interest and showing the
details of the engineering flood safety analysis would be the
first step. A request should then be lodged for approp;riate
regulatory action. Current practice docs not provide for the
requlation of "non-intentional" dams, and a case for these
should be presented at the same time.

It has been argued that C.R.S. 1963, Sec. 118-7-1, setting out
the requirements for obtaining rights by prescription, confers
the right to enjoy the continued existence and protection of an
upstream reservoir whiCh has existed foy mOre th~n 18 years.
We arc of a different opinion, since we c~n find nO ~uch ca~~
and since ,,"e cannot find allY "adverse use." Feit v. Zolle;r,
155 Colo. 64, 392 P.2d 593 (1964), is distinguishable. In
that case, there was adverse use of another's ditch by drainage
waters from the upstream owner, and the court properly found a
prescriptive right. We conclude that there is no law to force
a reservoir owner to continue to operate for the benefit of
underlying property owners.
The zoning and State Engineer regulation examin~d above provide
tlM.f1l1 bar",ainino tn'lls, bl1~ f~il t'J brir"] about the perp",t'Jal
control ne;'ded. -Furthermore, the salient feature of the struc-
tllrc~ in question is that their use for ternpot"ary flood deten-
tion is not inconsistent with its use for existing purposes.
For this t"eason, such agreements ought to be feasible and with-
out great cost to the district. The nature of and strategy
be~ind such agreements is uxplurcd here.

Assuming that the State Engineer would take jurisdiction of
all the dams, the remedy that he has at his disposal from the
statute is to compel releases of water and maintenance of a
water level low enough to be safe. The problem is that in the

;

10