Overview of State and Federal Water Law. Jennifer Gimbel Colorado Water Institute

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1 Overview of State and Federal Water Law Jennifer Gimbel Colorado Water Institute

2 Mormons establish large irrigated network. By 1865, Mormons had dug 1,000 miles of canals in Utah Gold Rush in the Rockies. Claims were based on first possession first in time, first in right Water laws were first established by the Territorial Court Significant alteration of rivers occurred Miners and Mormons

"The right to divert the unappropriated waters of any natural

3 1876 Colorado becomes a state * A strict Doctrine of Prior Appropriation is adopted in the state constitution. "The right to divert the unappropriated waters of any natural stream to beneficial use shall never be denied." Colorado Constitution 1876

4 Water Law Basics Riparian System Reasonable Use by riparian landowners Shortage- Share and share alike Prior Appropriation System Any party could use water Shortage- First in time, first in right Rights transferable

5 Prior Appropriation Doctrine Earliest appropriators have the highest priority; First in time, first in right. Water must be put to beneficial use without waste or speculation. Remote uses and transfers allowed. Right of use can be forfeited by non-use.

7 Definition of Beneficial Use Expands

8 Colorado Water Rights Basics Water is owned by the people of the state of Colorado. A water right is a Usufructory right - right to use something that belongs to another. Water must be applied to beneficial use with minimal waste. A water right is assigned a priority date when adjudicated by the water court. Water rights are described by point of diversion, beneficial use, and amount (often a flow rate, in cfs or a storage amount in acre-feet). The value of a water right is in its dependability (priority).

9 Structure of CO Water Law system LEGISLATIVE General Assembly JUDICIAL Water Court / Supreme Court EXECUTIVE Governor of Colorado Senate - Ag & Natural Resources Committe House - Ag, Livestock & Natural Resources Committee Legislature establishes law Lobbyists, Attorneys, & interest groups influence proposed legislation (Colorado Water Congress) State Engineer may be asked to provide input on new legislation

10 Structure of CO Water Law system LEGISLATIVE General Assembly JUDICIAL Water Court / Supreme Court EXECUTIVE Governor of Colorado Supreme Court Water Court Water Referee Applicant Objectors SEO / DEO The Court interprets & upholds the law (legislation, constitution) Water Courts adjudicate water rights. Parties include: Applicant, Objectors, and DWR

11 Structure of CO Water Law system LEGISLATIVE General Assembly JUDICIAL Water Court / Supreme Court EXECUTIVE Governor of Colorado Dept. of Natural Resources Dept. of Public Health & Environment State Engineer (SEO) Water Quality Control Division Division Engineer (DEO) Water Commissioner DEO Staff

13 Water Administration Examples Junior (10 cfs) Senior (10 cfs)

14 Junior (10cfs) Gets 0 cfs 10 cfs Senior (10 cfs) Gets 10 cfs

15 Junior (10 cfs) 12 cfs Senior (10 cfs)

16 Junior (10 cfs) Gets 2 cfs 12 cfs Senior (10 cfs) Gets 10 cfs

17 Return Flows Junior (10 cfs) 5 cfs 10 cfs Senior (10 cfs)

18 2 cfs Junior (10 cfs) Diverts 4 cfs 12 cfs Senior (10 cfs) Gets 10 cfs

19 Change in Water Right Can change use and place of use of a water right and retain priority date, subject to conditions: Change is subject to obtaining a revised court decree Water rights is measured by historic consumptive use (HCU), the beneficial consumptive use made in time, location and amount of original appropriation over a representative historical time period. No material injury to other water rights, i.e. return flow patterns must be maintained.

20 Change of Place of Use Example Senior Change of Point of Diversion Gets 5 cfs Senior (10cfs) 5 cfs Junior (10 cfs) Junior (10cfs)

21 Augmentation Plans Allows a person to divert out of priority so long as senior water rights are not injured. Usually used in basins that are over-appropriated. Makes for more complications in administration of water rights.

22 Water Augmentation Example Junior (10 cfs) Diverts 5 cfs 10 cfs Senior (10 cfs) Gets 10 cfs Replacement Water 5 cfs

23 Section 2 - Water Administration 101 S. Platte River Calls - July 23, 2007 St Vrain & Boulder Creek, Big Thompson, & Poudre River Brantner Ditch City of Brighton City of Ft Morgan Sterling No. 1 (1882) bypass from Lower Platte & Beaver Ditch Harmony No. 1 (1895) bypass from Bravo Ditch South Platte River City of Brush Town of Julesburg Peterson Ditch CO NE Compact Call (1897) Lower Latham (1881) bypass from Brantner Ditch Lower Platte & Beaver Ditch Bravo Ditch South Reservation (1895) bypass from Peterson

24 Groundwater Three types of groundwater in Colorado Law: Tributary Non-tributary Not non-tributary

25 Groundwater Aquifers

26 Groundwater Tributary groundwater comes from precipitation (including snow runoff) and irrigation return flows. It is hydrologically connected to surface water. It is administered within prior appropriation system. Designated Groundwater is water within a specific designated basin as provided by the Ground Water Commission. Must get permit and is administered within the basin under modified prior appropriation system. Non-tributary groundwater defined by the withdrawal of which will not, within 100 years, deplete the flow of a natural stream at a rate greater than one tenth of one percent of the annual rate of withdrawal (essentially not hydrologically connected to surface water). User must get a permit. and administered under a modified prior appropriation system. Not non-tributary groundwater is nontributary groundwater in the Denver Basin aquifers (Dawson, Denver, Arapaho, and Laramie-Fox Hills). Must get permit and it is administered under modified prior appropriation system.

27 Instream Flows Originally a water user had to divert water to obtain a water right. In 1973 the General Assembly recognized the need to correlate the activities of mankind with some reasonable preservation of the natural environment. The law created the State s Instream Flow Program, providing the Colorado Water Conservation Board with the exclusive authority to own instream flow rights.

Water Quality Laws Colorado Water Control Act (1975) recognized the need to protect, maintain and improve the quality of water for public consumption, protection of wildlife and aquatic life and

28 Water Quality Laws Colorado Water Control Act (1975) recognized the need to protect, maintain and improve the quality of water for public consumption, protection of wildlife and aquatic life and for domestic, agricultural, industrial and recreational uses. Conditioned on no material injury to water rights. CWCA created the Water Quality Control Commission which sets standards for water bodies.

29 WEST TOWARD PACIFIC OCEAN 8,666,000 AF 1,509, ,300 4,440, ,000 36,880 YAMPA McELMO WHITE COLORADO DOLORES 407,700 25,200 1,839,000 COLORADO HISTORICAL AVERAGE ANNUAL STREAM FLOWS 5 220, ,100 96, ,800 31, ,122, , , , , , ,400 GUNNISON 594, , , ,900 2,771, , , , , ,100 ROARING FORK 122,500 TOMICHI N. PLATTE 45,320 53,550 1,498, ,300 EAGLE CONEJOS 323,600 BLUE 107, ,500 24, ,900 66, ,100 79,800 86,830 86,340 32, , ,400 97, ,300 49, ,800 63, ,700 24,390 50,930 72,240 HUERFANO 396, , ,600 18, , , NORTH FORK REPUBLICAN 46,180 At Benkelman, NE 84, ,500 30,580 26, ,800 EAST TOWARD ATLANTIC OCEAN 1,331,000 AF 35,920 24, , , , ,700 Prepared by the Hydrographic Branch (2011 Revision) [all values in acre feet (AF)] 88, , ,100 TOTAL LEAVING COLORADO 9,997,000 AF OFFICE OF THE STATE ENGINEER COLORADO DIVISION OF WATER RESOURCES

30 Federal Water Law Interstate compacts (9) and Equitable apportionment decrees Clean Water Act Safe Drinking Water Act Endangered Species Act NEPA International treaties

31 Questions?

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