The Water CourseWater Law & Administration

January 19, 2009

Kyle Whitaker

Division of Water Resources

Assistant Division Engineer, Water Division No. 5

(970) 945-5665, kyle.whitaker@state.co.us

The Hydrologic Cycle

19 States & Mexico Rely on Colorado 19 States & Mexico Rely on Colorado WaterWater

COLORADOHISTORICAL AVERAGE ANNUAL STREAM FLOWS

(acre feet)

OFFICE OF THE STATE ENGINEERCOLORADO DIVISION OF WATER RESOURCES

Prepared by the Hydrographic Branch (2003 Revision)Historic averages obtained from USGS Water- Data Report CO-

YAMPA

WHITE

LITTL

E SNA

KE

ELK

NO

. PLA

TTE

CACHE LA POUDRE

SOUTH PLATTE

NORTH FORKREPUBLICAN

SOUTH FORK REPUBLICAN

NO. FORK

ARKANSAS

NO. FORK

UNCOM

PAHGRE

McELMO

MANCOS LA P

LATA

ANIM

AS &

FLO

RID

ALO

S PI

NO

SPI

EDRA

SAN JU

AN CONEJOS

PURGATO

IRE

GUNNISON

SAN MIGUELLARAM

IE

COLORADO

DO

LORES

RIO GRANDE

1,531,000

555,200

4,500,000

414,300

1,127,000

404,600

311,100111,800

37,100

36,890 25,580670,100 173,700 446,900

+291,200

235,800

322,100

653,300394,300

153,000

593,600

172,000

219,800

943,000

330,500547,300

291,200

268,600

1,872,000

125,100

31,890

313,200 96,300

49,640

47,020

164,20089,820

699,200528,200

879,800

413,200

329,200

45,590476,300

229,200

185,200

403,400

31,680

28,750

69,750

FOU

NTA

IN

APISHAPA18,970HUERFANO

26,930GRA

PE

24,933

BEAR33,760

58,14688,051

63,038

126,800

270,500

204,400

404,400

875,600

265,800 99,500

634,500

ST. VRAIN

BOULDER

158,800

50,050

PICEANCE

27,700

152,600

6

5

2

1

34

7

6

5

2

1

34

7

505,600

279,700

2,799,000

334,400

54,760 85,540

EAST

TO

WAR

D A

TLAN

TIC

OCE

AN 1

,050

,900

af

WES

T TO

WAR

D P

ACIF

IC O

CEAN

9,1

89,5

50

af

TOTAL LEAVING COLORADO 10,240,450 af

ROARINGFORK

EAGLE

BLUE

TOMICHI

SOUTH

FORK

SAN JUAN - CHAMA

94,180

At Benkelman, NE

1

2

3

7

4

5

6

GREELEY

DENVER

PUEBLO

ALAMOSA

DURANGO

MONTROSE

DELTA

GRANDJ UNCTION

GLENWOODSPRINGS

STEAMBOATSPRINGS

ARKANSAS RIVER

RIO GRANDE

DO

LOR

ES

RIV

ER

COLORADO RIVER

YAMPA RIVER

SOUTH

PLAT

TE

RIVER

5

10

78

12

15

1617

1819202122

23

24

25

2829

30

3132 33

34

TO SOUTH PLATTE BASIN1. WILSON SUPPLY DITCH2. DEADMAN DITCH3. BOB CREEK DITCH4. COLUMBINE DITCH5. LARAMIE POUDRE TUNNEL6. SKYLINE DITCH7. CAMERON PASS DITCH8. MICHIGAN DITCH9. GRAND RIVER DITCH

10. ALVA B. ADAMS TUNNEL11. MOFFAT WATER TUNNEL12. BERTHOUD PASS DITCH13. STRAIGHT CREEK TUNNEL14. VIDLER TUNNEL 15. HAROLD D. ROBERTS TUNNEL16. BOREAS PASS DITCH17. HOOSIER PASS TUNNEL

TO ARKANSAS BASIN18. COLUMBINE DITCH19. EWING DITCH20. WURTZ DITCH21. HOMESTAKE TUNNEL22. CHARLES H. BOUSTEAD TUNNEL23. BUSK-IVANHOE TUNNEL24. TWIN LAKES TUNNEL25. LARKSPUR DITCH26. HUDSON BRANCH DITCH27. MEDANO PASS DITCH

TO RIO GRANDE BASIN28. TARBELL DITCH29. TABOR DITCH30. WEMINUCHE PASS DITCH31. PINE RIVER-WEMINUCHE PASS DITCH32. WILLIAMS CREEK-SQUAW PASS DITCH33. DON LA FONT DITCHES 1 & 234. TREASURE PASS DITCH35. SAN J UAN-CHAMA PROJ ECT

TRANSMOUNTAIN DIVERSIONSOFFICE OF THE STATE ENGINEER

GUNNISON

RIVE

R

12

41

4243

TO COLORADO RIVER BASIN40. DIVIDE HIGHLINE FEEDER DITCH41. SARVIS DITCH42. STILLWATER DITCH43. DOME DITCH44. REDLANDS POWER CANAL

6

9

11

14

34

13

35

2627

363738

40

39

TO GUNNISON RIVER BASIN36. RED MOUNTAIN DITCH37. CARBON LAKE DITCH38. MINERAL POINT DITCH39. LEON TUNNEL

Updated J une 2005

44

Water Deliveries in Colorado

• Agriculture86%

• Municipal/Domestic 7%• Recreation/Fisheries 3%• Industrial/Commercial

2%• Augmentation 1%• Recharge

1%

Office of the State EngineerDivision of Water Resources

Department of Natural Resources Department of Natural Resources AgenciesAgencies

Water ResourcesWater Resources WildlifeWildlife Oil and Gas Oil and Gas

Conservation Conservation CommissionCommission

Geological Geological SurveySurvey

ForestryForestry

Water Water Conservation Conservation BoardBoard

State ParksState Parks Reclamation, Reclamation,

Mining, and Mining, and SafetySafety

State Land BoardState Land Board

Division of Water Resources Division of Water Resources ResponsibilitiesResponsibilities

Water AdministrationWater Administration Public SafetyPublic Safety Ground Water PermittingGround Water Permitting Interstate CompactsInterstate Compacts Hydrographic ProgramHydrographic Program Public Information ServicesPublic Information Services Additional Program ActivitiesAdditional Program Activities

Key Statutes DWR Operates Under

• Title 37, Article 92 Water Rights Determination and Administration (Water Courts, Water Right Decree Process, Substitute Water Supply Plans, Tabulation, Administration, Exempt Well Permitting)

• Title 37, Article 90 Well Permitting • Title 37, Article 80 State Engineer Authority and

Responsibilities • Title 37, Article 84 Responsibility of User of Water for

Maintenance of Diversion Structures, Ditches and Measuring Flumes

• Title 37, Article 87 Review of Plans and Specifications for Reservoir and Determination of Safe Storage Levels

Prior AppropriationThe Colorado Doctrine

Green Mountain Reservoir

Mark’s Gold Mine

2.0 c.f.s.

Mining and Milling

1861

Mark’s Gold Mine

2.0 c.f.s.

Mining and Milling

1861

Mesa Town

1.0 c.f.s.

Municipal

1862

Mark’s Gold Mine

2.0 c.f.s.

Mining and Milling

1861

Mesa Town

1.0 c.f.s.

Municipal

1862

Max’s Power Plant

5.0 c.f.s

Industrial

1865

Mark’s Gold Mine

2.0 c.f.s.

Mining and Milling

1861

Mesa Town

1.0 c.f.s.

Municipal

1862

Max’s Power Plant

5.0 c.f.s

Industrial

1865

Fruit Town

0.5 c.f.s.

Municipal

1868

Mark’s Gold Mine

2.0 c.f.s.

Mining and Milling

1861

Mesa Town

1.0 c.f.s.

Municipal

1862

Max’s Power Plant

5.0 c.f.s

Industrial

1865

Fruit Town

0.5 c.f.s.

Municipal

1868

Hannah’s Brewery

.033 c.f.s.

Entertainment

1869

Mark’s Gold Mine

2.0 c.f.s.

Mining and Milling

1861

Mesa Town

1.0 c.f.s.

Municipal

1862

Max’s Power Plant

5.0 c.f.s

Industrial

1865

Fruit Town

0.5 c.f.s.

Municipal

1868

Hannah’s Brewery

.033 c.f.s.

Entertainment

1869

Mark’s Gold Mine

2.0 c.f.s.

Mining and Milling

1861

Mesa Town

1.0 c.f.s.

Municipal

1862

Max’s Power Plant

5.0 c.f.s

Industrial

1865

Fruit Town

0.5 c.f.s.

Municipal

1868

Hannah’s Brewery

.033 c.f.s.

Entertainment

1869

1st2nd

3rd

4th5th

Water Administration

Water Commissioner Responsibilities

• Day to Day Administration– Setting the Call Based on Supply and Demand– Assuring Diversions In Priority For Decreed Uses Without Waste– Delivery of Reservoir Releases and Other Water After Assessing Transit

Losses– Assuring Diversions Are Measured– Assuring Other Decree Conditions in Augmentation and Change Cases

Are Complied With• Review of Accounting and Maintenance of Diversion Records

Statutory Provisions Commonly Used for Water Administration

• C.R.S. 37-92-501 General Jurisdiction to Administer Water• C.R.S. 37-92-502 Daily Administration

– (2) order total or partial discontinuance of use to extent water not necessary for beneficial use or needed by senior user (see also C.R.S. 37-84-116 – control of headgates)

– (2) won’t order discontinuance unless makes water available at the place of seniors need.

– (2) Stop discontinuance if water does not become available to senior priorities in time and place of need

– (5)(a) Authority to order installation of measuring devices (also C.R.S. 37-84-112, 37-84-114 – SEO rates flumes)

– (6) staff may enter private property• C.R.S. 37-84-117 (5) release of water to account for

evaporation from on-stream reservoirs• C.R.S. 37-80-120 Exchanges (several other references)

Definition of Terms for a Call

• Free River – the supply of water in the river exceeds the demand for water by all decreed water users

• Call – the demand for water by a user • Call Recognized and Administered by Division of Water

Resources – the determination by the Water Commissioner of the most junior right that may divert when the supply of water in the river is less than the demand on the river by all decreed water users (also known as “the Call”) Note: These definitions are not found in statute, but are working definitions. The primary statute that water administration occurs under is 37-92-502 C.R.S.

How Does A Commissioner Set The Valid Call For A Portion Of The River?

• Determines river conditions (supply) from stream gaging stations

• Determines the demand (calls) by various water right holders from water user contacts

• Sets the valid call based on a comparison of river conditions (supply) and demand (calls) and knowledge of water gains or losses and water travel times between points on the river

Conditions Commissioners Review Prior to Placing A Valid Call for a User

• User must be in priority• Water diverted by user must be used in accordance with the

decree terms and conditions• Water cannot be wasted • User must have an acceptable headgate and an accurate

measuring device• User must be taking all the water that is available at their

headgate• Must determine whether user can get the water they are

asking for without setting a call• Must determine whether user will get the water they are

calling for by curtailing upstream junior rights

Typical Call

Colorado River

Grand Ditch 11-20-1885

(Admin. No. 13108.00000)

Ditch A1-1-1880 50 cfs Ditch B

1-1-1875 100 cfs

River

                   

 

Example: Ditch A is taking 50 cfs. Ditch B owner calls the commissioner and is 70 cfs short. The call becomes Ditch B with a 1-1-1875 call. Ditch A is completely curtailed.

Ditch B1-1-1875 100 cfs

Ditch A1-1-1880 50 cfs

River

 

   

Example: Ditch A is taking 50 cfs. Ditch B owner calls the water commissioner and is 30 cfs short. The call becomes Ditch A with water being bypassed to Ditch B with a 1-1-1880 priority date. Assuming no inflow or outflow in the interim reach, Ditch A is curtailed to 20 cfs.

Ditch A1-1-1880 50 cfs

Ditch C1-1-1895 100 cfs

Ditch B1-1-1875 200 cfs

Tributary

River

  

                         

Example: Ditch A is taking 50 cfs and Ditch C 100 cfs. Ditch B owner calls the commissioner and is 120 cfs short.

You are the commissioner, what do you do?

Is it really that simple?

What are some factors that might make the decision more difficult?

Plans for Augmentation and Changes of Water Rights

Change of Water Right

• Change in type, place, or time of use• Change in point of diversion• Change from direct application to storage and

subsequent application• Change in point of storage

Change of Water Right

Generally, a change of an irrigation right to municipal purposes. This may involve new or alternate points of diversion, but not always.

Plan For Augmentation

A plan to replace out of priority depletionscaused by a junior water right to senior waterrights. The replacements are made with anothersource of water. Depletions must be replaced intime, place and amount in order protect seniorwater rights. The application for approval of aplan for augmentation in water court allowsothers the opportunity to express their concernsregarding its ability to protect their water rights.

Water Rights Issues

CRS 37-86-102 Right-of-way through other lands.

Any person owning a water right or conditional water right shall be entitled to a right-of-way

through the lands which lie between the point of diversion and point of use or proposed use for the purpose of transporting water for beneficial use

in accordance with said water right or conditional water right.

Prescriptive Easement

“An easement created from an open, adverse, and continuous use over a statutory period.”

Black’s Law Dictionary, Seventh Edition

Irrigation Efficiency

“You better cut the pizza in four pieces because I’m not hungry enough to eat six.”

Yogi Berra - #8