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<br />REGeLATIO~ OF EXISTING CH&~~EL fEATURES ny
<br />THE STATE ENGI~EER
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<br />small reservoirs the basic design defect has to do with spillway
<br />inadequacy. Even if tho reservoirs were maintained empty, a
<br />flood peak might fill and overtop the reservoir. It is not
<br />clear that the State Engineer could compel adequate spillway
<br />construction On small dams, although he could put force to bear
<br />sO that that result might obtain. In any event, it is clear
<br />that the ultimate remedy can only result from negotiation.
<br />The option which an owner has to abandon and destroy his rese;r-
<br />voir is undeniable, even though not in the interest of flood
<br />protcction. In a condemnation or partial condemnation situation,
<br />devaluation of a structure by the effect of State Engineer
<br />regulation might become an important weapon of the District.
<br />OTHER METHODS OF CO~TROLLING EXISTING CHAN~EL FEATURES
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<br />The State Engineer is statutorily charged with the regulation
<br />of dams and reservoirs to insure their safety. C.R.S. 1963,
<br />Sec. l48-5-1, et~. Although submission of plans and specifi-
<br />cations is preOIcatcd on certain sizes of reservoirs, Sec. 148-5-5,
<br />(dam taIlor than 10 feet, surface area larger than 20 acres,
<br />or capacity larger than 1000 acre feet), safety regulation of
<br />existing reservoirs would appear to be statutorily independent
<br />of reservoir size. Sec. 148-5-7 and Sec. 158-5-8. However,
<br />the State Engineer's Office takes the position that its juris-
<br />diction in general is confined to reservoirs in excess of the
<br />size requirements of Sec. 148-5-5.
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<br />By way of example, Clair field and Bit-O-Sea reservoirs are
<br />both probably small enough that plans and specifications were
<br />never required. It is not known whether either of these has
<br />decreed water rights. However, the s~fety of both structures
<br />is brought into question because of inadequate spillway and
<br />freeboard si~e. In some flOod less than 100 year frequency
<br />overtopping and, presumptively, failure will occur. Under
<br />Sec. 148-5-7, the State Engineer should determine what amount
<br />of storage would be required to be kept available in order to
<br />prevent ovcrtopping by predictable floods. Whether or not he
<br />will in fact regulate such structures will depend on his inter-
<br />pretation of Sec. 148-5-7 and 8. The qucstion has been raised
<br />with his office in a general way and we are awaiting a general
<br />Lc~ponse to our contention.
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<br />It appears clearly that the optimum mode of assuring control of
<br />existing detention devices is by express agreement with the
<br />structurc's owner. It is sometimes argued that the existence
<br />of rights and liabilities under regulation by the State Engineer
<br />and the zoning entity confers a measure of control on the public,
<br />presumably on the Di>;trict ai> the flood control entity. The
<br />existence of the drainage servitude, thought of as an easement
<br />by case law, is argued to givc control over those who build
<br />across the easement. It is our opinion, however, that these
<br />oontentions fall short of conferring the level of certainty
<br />and dependability required by a pUblic entity. We think that
<br />any rights Claimed by the district should be set down in re-
<br />cordable docurecnts.
<br />
<br />We recommend the presentation of a concrete fact situation
<br />to the State Ellginecr in hearing to sh,upen the issue. The
<br />process ,,",ould be initiated under the tcrms of S,-,c. 148-5-9
<br />~roviding for a complaint by some person hav~ng proporty en-
<br />dangered by the structure. A well-documented presentation showing
<br />the general nature of the District's interest and showing the
<br />details of the engineering flood safety analysis would be the
<br />first step. A request should then be lodged for appropriate
<br />regulatory action. Current practice docs not provide for the
<br />requlation of "non-intentional" dams, and a case for these
<br />should be presented at the same time.
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<br />It has been argued that C.R.S. 1963, Sec. 118-7-1, setting out
<br />the requirements for obtaining rights by prescription, confers
<br />the right to enjoy the continued existence and protection of an
<br />upstream reservoir which has existed foy mor~ th~n 18 years.
<br />We urc of a different opinion, since we c~n find nO ~uch ca~~
<br />und since ,,"e cannot find any "adverse use." Felt v. Zolle;r,
<br />155 Colo. 64, 392 P,2d 593 (1964), is distinguishable. In
<br />that case, there was adverse use of another's ditch by drainage
<br />waters from the upstream owner, and the court properly found a
<br />prescriptive right. We conclude that there is nO law to force
<br />a reservoir owncr to continue to operate for the benefit of
<br />underlying property owners.
<br />The zoning and State Engineer regulation examin~d above provide
<br />tlM.f1l1 bar",ainino tn'lls, bl1~ f~il t'J brir"J i.>.Dcut the perpet'Jal
<br />control ne;'ded. -Furthermore, the salient feature of the struc-
<br />ture~ in question is that their use for temporary flood d'-'tcn-
<br />tion is not inconsistent with its use for existing purposes.
<br />For this reason, such agreements ought to be feasible and with-
<br />out great cost to the district. The nature of and strategy
<br />be~ind such agreements is uxplorcd here.
<br />
<br />Assuming that the State Engineer would take jurisdiction of
<br />all the dams, the remedy that he has at his disposal from the
<br />statute is to compel relCdses of water and maintenance of a
<br />water level low enough to be safe, The problem is that in tho
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