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VRANESH'S COLORADO WATER LAW2003 SUPPLEMENT INCLUDING CASES AND MATERIALS THROUGH 2003
University Press of ColoradoCopyright © 2004 University Press of Colorado
All right reserved.
Chapter OneAN INTRODUCTION TO COLORADO WATER RIGHTS
P. 3, n. 6 Add the following to the end of the footnote:
; Empire Lodge Homeowners' Ass'n v. Moyer, 39 P.3d 1139 (Colo. 2002) (containing a thoughtful discussion of the operation of the Colorado water adjudication system).
P. 8, n. 18 Add the following to the end of the footnote:
For an historical discussion of the priority doctrine, see Hobbs, Priority: The Most Misunderstood Stick in the Bundle, 32 ENVTL. L. 37 (2002).
P. 15, n. 53 Add the following to the end of the footnote:
For a thorough discussion of the water issues driven by continued growth in Colorado, see generally P. Nichols, M. Murphy and D. Kenney, Water and Growth in Colorado: A Review of Legal and Policy Issues, Natural Resources Law Center, University of Colorado School of Law (2001).
P. 22, n. 108 Add a new footnote 108 after sentence two of the paragraph [ending "use of water."]:
108 The Colorado General Assembly has recently recognized this with the enactment of a new C.R.S. Article 98 creating a WaterResources Legislation Review Committee of the Legislature to assist in reviewing the administration and monitoring of Colorado's water resources. It will review and propose legislation: "(a) To maximize the benefit derived from Colorado's surface and groundwater resources; (b) To evaluate the present and future water needs of the state; (c) To ensure effective water rights administration; (d) To protect water quality and water quantity; (e) To ensure that Colorado's interstate water compact agreements are met and, in relation thereto, that Colorado's water resources are protected against unwarranted claims; and (f) To continue the studies of the special water committee pursuant to Senate Bill 96-074" C.R.S. 37-98-101 (2001). Article 98 was amended in 2002 by House Bill 02-1152.
Chapter TwoTHE NATURE OF THE RIGHT
P. 42 Add the following text to the end of paragraph three [ending "Water Conservation Board."]:
The opportunity to do this was constrained in 2001 by the enactment of legislation recognizing and limiting recreational in-channel diversions. The various statutory amendments and definitions:
(1) involve the Colorado Water Conservation Board in authorizing such appropriations;
(2) amend the definition of "beneficial use" to [include] "the diversion of water by a county, municipality, city and county, water district, water and sanitation district, water conservation district, or water conservancy district for recreational in-channel diversion purposes;"
(3) amend the definition of "diversion" to limit recreational in-channel diversions to those listed entities;
(4) add a definition of "recreational in-channel diversion;" and
(5) amend the standards with respect to rulings of the referee and decisions of the water judge to reflect these changes.
Prior to the passage of this "recreational in-channel diversion" legislation, three applications for recreational water rights in the form of traditional appropriations, one in Water Division 1 and two in Water Division 5, found their way to the Colorado Supreme Court. In each of the cases, water court decrees granting the applications were affirmed by virtue of an equally divided supreme court.
P. 43 Add the following new paragraph to the text after the carryover paragraph:
In 2000, the legislature again amended the statutory language. As now written, with respect to any application filed by the CWCB on or after July 1, 1994, "the board may not acquire conditional water rights or change conditional water rights to instream flow uses." In 2002, the statute was amended yet again, authorizing the board to accept the donation of water rights to preserve or improve the environment under certain circumstances.
P. 43, n. 121 Add the following to the end of the footnote:
See generally Neuman, Beneficial Use, Waste, and Forfeiture: The Inefficient Search for Efficiency in Western Water Law, 28 ENVTL. L. 919 (1998).
P. 50, n. 164 Replace footnote citation as follows:
975 P.2d 189 (Colo. 1999).
P. 50, n. 165 Add the following to the end of the footnote:
See Santa Fe Trail Ranches Property Owners Ass'n v. Simpson, 990 P.2d 46, 52 (Colo. 1999) (holding that "an undecreed change of use of a water right cannot be the basis for calculating the amount of consumable water that can be decreed for change to another use").
P. 54 Add the following new paragraph after the indented paragraph at the top of the page:
The legislature has also authorized the conjunctive use of groundwater and surface water by means of artificial recharge and aquifer storage.
However, an applicant for a conditional decree to utilize available aquifer storage space must demonstrate that it will capture, possess, and control water lawfully available to it and, without injury to other water rights, will artificially recharge that water into the aquifer, such as through a constructed injection well or structure built on the land's surface. To obtain an absolute decree for aquifer storage, the applicant must artificially recharge the water into the aquifer pursuant to a decreed water use right for storage and subsequent beneficial use. 183a
The court identified eight conditions that must be met to utilize an aquifer for storage of artificially recharged water:
The applicant, at least: (1) must capture, possess, and control the water it intends to put into the aquifer; (2) must not injure other water use rights, either surface or underground, by appropriating the water for recharge; (3) must not injure water use rights, either surface or underground, as a result of recharging the aquifer and storing water in it; (4) must show that the aquifer is capable of accommodating the stored water without injuring other water use rights; (5) must show that the storage will not tortiously interfere with overlying landowners' use and enjoyment of their property; (6) must not physically invade the property of another by activities such as directional drilling, or occupancy by recharge structures or extraction wells, without proceeding under the procedures for eminent domain; (7) must have the intent and ability to recapture and use the stored water; and (8) must have an accurate means for measuring and accounting for the water stored and extracted from storage in the aquifer.
The applicant bears the burden of demonstrating that these conditions have been met.
P. 56, n. 197 Replace footnote citation to City of Grand Junction v. City and County of Denver as follows:
, 960 P.2d 675 (Colo. 1998).
P. 62, n. 227 Add the following to the end of the footnote:
For a discussion of the rights attendant upon a ditch easement, see Roaring Fork Club, L.P. v. St. Jude's Co., 36 P.3d 1229 (Colo. 2001); East Meadows Co., L.L.C. v. Greeley Irrigation Co., 66 P.3d 214 (Colo. Ct. App. 2003).
P. 66, n. 268 Add the following to the end of the footnote:
See East Meadows Co., L.L.C. v. Greeley Irrigation Co., 66 P.3d 214 (Colo. Ct. App. 2003).
P. 88 Add the following text as a new paragraph after the second full paragraph on p.88:
In Colorado Ground Water Comm'n v. North Kiowa-Bijou Groundwater Mgmt. Dist., the court dealt with the issue of designated ground water located within the boundaries of the Denver Basin. It held that legislation enacted in 1998 eliminated the administrative anomaly between designated and nondesignated nontributary water within the Denver Basin by giving the Ground Water Commission authority parallel to that of the water courts. The allocation rules remain the same for each.
P. 93 Add the following text as a new paragraph after the carryover paragraph:
In fact, as the supreme court has recently pointed out in Colorado Ground Water Comm'n v. North Kiowa-Bijou Groundwater Mgmt. Dist., the overlying land owner has a choice. "To obtain a use right for non-tributary, non-designated groundwater, an overlying land owner can either seek a decree from the water court to determine a right to withdraw a quantity of ground water or apply to the state engineer for a well permit. [Citing Talley and C.R.S. 37-900-137(4),(6)]. In either case a permit is required to pump the water."
P. 95 Add the following to the sentence [beginning "In addition"]:
These dates have been modified from time to time. In 2003, House Bill 031005 changed them to July 1, 2009, until July 1, 2012.
P. 95, n. 446 Add the following to the end of the footnote:
See Park County Sportsmen's Ranch L.L.P. v. Bargas, 986 P.2d 262 (Colo. 1999) (holding that the reference in C.R.S. 37-90-103(10.5) and (10.7) to the four aquifers applies only to formations of those aquifers that are located in the Denver Basin).
P. 103, n. 488 Add the following to the end of the footnote:
See In re Vought, 76 P.3d 906 (Colo. 2003).
P. 104, n. 491 Add the following to the end of the footnote:
It has also held that the anti-speculation doctrine applies in proceedings to determine due diligence with regard to a conditional decree, discussed infra at page 108. See Mun. Subdistrict, Northern Colorado Water Conservancy Dist. v. OXY USA, Inc., 990 P.2d 701, 709 (Colo. 1999). More recently, the supreme court has extended the application of the doctrine to the Groundwater Commission's determination of designated groundwater rights within the Denver Basin, discussed supra at page 85. Colorado Groundwater Comm'n v. North Kiowa-Bijou Groundwater Mgmt. Dist., 77 P.3d 62, 78 (Colo. 2003).
P. 107 Add the following text to the end of the final paragraph:
; West Elk Ranch, L.L.C. v. United States ("Can and will" not shown where proposed point of diversion is on National Forest Land, and applicant for conditional decree has been denied a Special Use Permit by the Forest Service); In re Vought (applicant must "prove a substantial probability that the appropriation can and will be completed with diligence, based upon necessarily imperfect predictions of future conditions") (citing Aspen Wilderness Workshop, Inc. v. Hines Highlands Ltd. P'ship, 929 P.2d 718 (Colo. 1996)).
P. 107, n. 506 Add the following to the end of the footnote:
See Bd. of County Comm'rs of Arapahoe County v. Crystal Creek Homeowners' Ass'n, 14 P.3d 325, 333 (Colo. 2000) (holding that "the applicant must prove, taking into account actual operation of decrees, that the river contains sufficient unappropriated water for the applicant to complete the appropriation diligently and in a timely manner"). In Mount Emmons Mining Co. v. Town of Crested Butte, 40 P.3d 1255, 1257 (Colo. 2002), the court recognized that water rights in the Aspinall Unit are specifically subject to a subordination agreement, and held that in order to meet the required showing of water availability in the context of the "can and will" doctrine, an applicant for a conditional decree need not have a contract with the Bureau of Reclamation to take advantage of the subordination policy.
P. 108, n. 514 Add the following to the end of the footnote:
See also Mun. Subdistrict, Northern Colorado Water Conservancy Dist. v. OXY USA, Inc., 990 P.2d 701, 708, n. 3.
P. 109 Add the following new paragraph after the first paragraph:
In Dallas Creek Water Co. v. Huey, the supreme court noted that in making its case-by-case determination of diligence, the water court considers several factors, which "include but are not limited to:
(1) economic feasibility;
(2) the status of requisite permit applications and other required governmental approvals;
(3) expenditures made to develop the appropriation;
(4) the ongoing conduct of engineering and environmental studies;
(5) the design and construction of facilities; and
(6) the nature and extent of land holdings and contracts demonstrating the water demand and beneficial uses which the conditional right is to serve when perfected."
P. 113 Add the following text to the end of the first paragraph:
Although this principle was briefly in doubt, it was re-established in Mun. Subdistrict, Northern Colorado Water Conservancy Dist. v. OXY USA, Inc., where the court stated that "[t]he very nature of a conditional right suggests that the 'can and will' test applies until the right matures into an absolute decree." Using a similar rationale, the court also held that the anti-speculation doctrine, discussed supra at page 103, applies to periodic diligence hearings.
P. 114, n. 544 Add the following to the end of the footnote:
; Mun. Subdistrict, Northern Colorado Water Conservancy Dist. v. Getty Oil Exploration Co., 997 P.2d 557, 562 (Colo. 2000).
P. 114, n. 546 Add the following to the end of the footnote:
But see In re Water Rights of Double RL Co., 54 P.3d 908, 912 (Colo. 2002) (interpreting C.R.S. 37-92-305(7) (2003) to "require that the water court provide notice to an owner of a conditional water right before the right expires or is canceled-even when the holder of the right fails to file within the statutory time period an application for a finding of reasonable diligence").
P. 128, n. 631 Add the following to the end of the footnote:
See generally Hill, The Right to Float Through Private Property in Colorado: Dispelling the Myth, 4 U. Denv. Water L. Rev. 331 (2001); Potter, Marlin, and Kanda, Legal Underpinnings of the Right to Float Through Private Property in Colorado: A Reply to John Hill, 5 U. Denv. Water L. Rev. 457 (2002).
Chapter ThreeWATER ADJUDICATION AND ADMINISTRATION
P. 142, n. 15 Add the following to the end of the footnote:
For several articles examining the 1969 Act and its effects on various aspects of Colorado water administration, see Symposium, 3 U. Denv. Water L. Rev. 1 (1999).
P. 146 Add the following new paragraphs to the text after footnote 58:
After noting that a water court decree issued without adequate resume notice is void, the Colorado Supreme Court in In re Water Rights of Columbine Ass'n, addressed the standard by which the adequacy of the resume notice should be judged. It focussed on the reasonableness of the notice in each particular case, "determined by applying an inquiry standard-whether the notice is sufficient to reveal to potential parties the nature of the claim being made, so that such parties can determine whether to conduct further inquiry into the full extent of those claims so a determination can be made whether to participate in the proceedings. * * * * [In Monaghan Farms, 807 P.2d at 18] [w]e defined inquiry notice as:
Inquiry notice requires sufficient facts to attract the attention of interested persons and prompt a reasonable person to inquire further. The receipt of inquiry notice charges a party with notice of all the facts that a reasonably diligent inquiry would have disclosed. Consequently, alleged deficiencies invalidate the resume only if the resume as a whole is insufficient to inform or put the reader on inquiry of the nature, scope, and impact of the proposed diversion."
The resume is also important in the context of subject matter jurisdiction. In order for a judgment to be valid, the court must have jurisdiction over the parties and the subject matter of the case. The Colorado Supreme Court has held that "subject-matter jurisdiction vests in the water court upon the timely filing of the application and publication of the resume notice."
P. 146, n. 57 Add the following to the end of the footnote:
This subsection was amended in 2001 by HB 01-1254 to mandate mailing of the resume to "the persons listed in each application as the owner or reputed owner of the land upon which any structure is or will be located, upon which water is or will be stored, or upon which water is or will be placed to beneficial use...." The problem of notice is discussed in SL Group, L.L.C. v. Go West Industries, Inc., 42 P.3d 637 (Colo. 2002). For a general discussion of the impact of the amendment, see Moseley, Heightened Notice Requirements for Water Rights Applications, 32 Colo. Law. 93 (June 2003).
P. 146, n. 59 Add the following to the end of the footnote:
; Shirola v. Turkey Canon Ranch, 937 P.2d 739, 747 (Colo. 1997).
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Table of Contents
Contents1. An Introduction to Colorado Water Rights....................1
2. The Nature of the Right....................3
3. Water Adjudication and Administration....................9
4. Transfer of Water Rights....................15
5. Water Organizations....................17
6. Federal-State Water Relations....................19
7. Protection of Water Quality in Colorado....................25
8. Transmountain and Interstate Waters....................27
9. Condemnation of Rights....................29
Table of Cases....................31