Prior Appropriation Midterm

Different CO Agencies & Their Various Domains

(1) Colorado Water Conservation Board - develop a variety of programs projects; provides financial and technical assistance to support the CO Water Plan; protects the state's instream flow (ISF) rights by enforcing terms and conditions contained in decrees, stipulations, and agreements. - they also monitor streamflow conditions to ensure ISF water rights are being met (2) Colorado Division of Water Resources, known as the Office of the State Engineer - administers water rights, issues water well permits, represents CO in interstate water compact proceedings

broad methods of gaining water right for instream flow protection for CWCB

(1) appropriation - the traditional water court process - apply for a junior water right · Pros gives a stream a permanent source of water to maintain just enough flow to protect water right · Cons can be really expensive; state legislature set up fund to be used but it is not enough (2) acquisition - a variety of statutory and creative tools exist to provide opportunities for temporary and permanent transfers of senior water rights to instream flow Pros relatively cheap to do, continues the status quo (can't be called on); majority of their water rights

Posited policy motivations and justifications for the transition to prior appropriation

(1) arid climate and geography of the west (2) economic expansion and social conditions of 19th century (3) anti-monopoly concerns

Augmentation and Exchange - definitions

(1) augmentation - usually refers to groundwater outside of the priority system [non-tributary ground water] and can use that water to put it back in system to avoid causing harm - a plan that lets you divert water when you would otherwise be subject to a call by providing a supply of water to offset your out-of-priority depletions. (2) exchange - commingling of water rights, allowing agreements for right holders to prevent them from using water during certain periods instream flow rights, or other exchanges of water - buyer = broker trying to ensure water is put back into system - ways for junior rights holders to pull out of priority

Notable Divergences in CO's Prior Appropriation Framework

(1) does not require actual diversion (2) does not allow for consideration of public interest factors in granting conditional decrees/rights (3) is not a permitting state; there is only judicial determination of (i) absolute and (ii) conditional water rights, as well as (iii) changes to water rights (4) does not allow appropriator to recapture and reuse their own waste water (5) only prior appropriation state to allow users to gain water rights via prescription [period of 18 years] *adverse possession*

Legal mechanisms to advance public interest in water - (3) other mechanisms

(1) environmental protection & public recreation (2) instream flow rights in CO (3) navigable water + the public trust

Transfers & Changes - The Warranty (4 basic types of deed)

(1) general warranty - warrants title from first owner - best type of deed for buyers, stands for principle that seller warrants any defect in title from first owner -> seller - full guarantee for any defects for what you're buying...minimal risk in risk-assessment analysis (2) special warranty - warrants title during seller's ownership - warrant for any defect caused by seller or during their ownership period of the property (3) quitclaim - no warranty, conveys whatever the seller has (if anything) - warrants nothing; involves much higher degree of risk as buyer (4) bargain and sale - similar to quitclaim, but does convey after-acquired title - conveys a grantor's interest in the water right as of the date of conveyance, as well as any interest that the grantor acquires in the water right after closing (i.e., conditional water rights) - specific statutory form of quitclaim deed that exists after sale in Colorado and many other states - still no warranty

Legal mechanisms to advance public interest in water (3)

(1) state constitutions (2) statutory authority (3) other mechanisms

Principles of prior appropriation from Coffin

(i) mere ownership of land gives no right to use of water by landowner. (ii) water flowing in stream in ints natural condition is unowned and held by state for acquisition by water users; is thus a usury right [not as durable as fee simple title, but close in practice].

CO Water Court Decrees; involve

(i) priority date (ii) specific, non-speculative type of beneficial use (iii) place of use (iv) specific quantification (v, vi) source of supply, point of diversion [from CALI Prep]

Water title opinions

- In writing - Only for benefit of client - Careful description of water - quote from contract · Quote from description used in original sales contract The scope of review of title opinion - Documents reviewed - "no other documents" - Name of parties with current title (+ description of that, if able to find, and hopefully they match up) - Liens and Encumbrances · Real property issues on water right itself; i.e., if ditch claimed by someone else for some purpose water user never paid lien can be placed - Recommendations - Disclaimers - If finding discrepancies; how does a title opinion help client? · Provides confidence or doubt onto value of what is being purchased or negotiated; if there is some uncertainty.

important considerations for water banks, IWSAs, and leases

- engineering costs - administrative costs of review by ditch companies - shareholder/ditch company responsibilities for property taxes, land remediation, reduction in income, replacement of ditch loss/seepage, risk of HCU analysis being different than anticipated - need for storage or other infrastructure (costs_ for movement and delivery of water - changes in rural economies and communities - for SWSPs and leases; replacement of out-of-priority depletions and lagged return flows; accounting

Administrative water issues

- ensuring availability - allocating rights for future uses - managing preferences - promoting the public interest

Chain of title: taking stock

- no title insurance in water rights - always start with title commitment * tells you description of what is being sold and of the beneficial use - at least 18 years (FOR WHAT?) - in certain circumstances, go back to patent - if there is previous title opinion, be sure to verify gap in title

Beneficial use as:

1. Basis 2. Measure 3. Limit

Loss of Prior Appropriation Right: Methods

1. Forfeiture - statutory termination of water rights if they are not used for a given period. 2. Abandonment - common law concept that requires proof of intent to relinquish dominion and control over water right; proponent of abandonment bears burden of proving the requisite state of mind. 3. Prescription - generally prescriptive rights are not recognized in most prior appropriation states, either against the state or among private parties. - Same principle of sovereign immunity that precludes gaining rights to government land by adverse possession prevents acquiring a water right by prescription.

Waters subject to appropriation

1. Watercourses a. streams b. lakes and ponds c. springsterm-1 2. Waters made available by human effort a. foreign or developed water - new waters not previously part of river system - free from call b. salvaged water - waters from the river or its tributaries (including aquifer) which ordinarily would go to waste, but somehow are made available - subject to call 3. Withdrawals from appropriation (?) a. maintenance of in-stream flows b. reservations for future uses

Basic elements of a valid appropriation

1. intent to apply water to a beneficial use 2. an actual diversion of water from a natural source of surface water; and 3. application of the water to a beneficial use within a reasonable time

Local water supply organizations: types

1. private local water supply organizations - acequias - water utilities - mutual ditch/water companies - carrier ditch companies - irrigation districts 2. public local water supply organizations - municipal water service utilities - special use districts

specific legal mechanisms for transferring + protecting flows instream (8)

1. temporary loan program - 2. substitute water supply plans - 3. interruptible water supply agreements - 4. plans for augmentation - 5. ag water protection water rights - 6. water banking - 7. efficiency transfers - 8. junior storage appropriations and paper fill -

Local water supply orgs (public); municipal service water utilities

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Local water supply orgs (public); special use districts

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C.R.S. § 37-92-103(5) - Change of Water Right

A change in - type, place, or time of use - point of diversion - means of diversion - place of storage - from fixed point to alternate/supplemental point of diversion (+ reverse) - direct application to storage and subsequent application (+ reverse) - from fixed place of storage to alternate places of storage (+ reverse) - any combination of such changes ** a change in point of return (of "waste water" or "return flow") not listed.

WaterWatch of Oregon v. Water Resources Department

A permittee must put appropriated water to beneficial use as contemplated by the permit to convert the permitted water rights to a final water right. - construction of water works//application of water under the terms of the permit, and not generally (per se) is the measure used for determining if a water right has been perfected.

Green v. Chafe Ditch (CO. 1962)

A water right holder can change or transfer a water right, but it is limited to amount of water reasonably necessary to make beneficial use. But there can be no injury to vested water rights. o Juniors have vested rights in the continuation of stream conditions as they existed at time of appropriation No injury = o No injury caused by the change in amount of use o No injury caused by change place of use o No injury caused by change in time (type) of use

Loss of Appropriation Rights: Colorado

Abandonment [more like forfeiture] Definition - "the termination of a water right in whole or in part as result of the intent of the owner thereof to discontinue permanently the use of all or part of the water available thereunder." § Failure to apply water to a beneficial use for a period of ten years creates a rebuttable presumption of abandonment. · Montana also has same rebuttable presumption after 10 year period of time Prescription Definition - When one adversely possesses a water right against private parties if there is a preponderance of the evidence that behind the headgate, the adverse possessor - hostile to the owner and under claim of right - notoriously, adversely, exclusively, and continuously made actual beneficial consumptive use of all or a portion of deeded water interests on the adverse possessor's lands for an eighteen-year adverse possession period. *connected to idea of water as widget: Colorado is the only state that allows for adverse possession of a water right

Jenkins v. State, Department of Water Resources (ID. 1982) - Abandonment vs Forfeiture doctrines

Abandonment is a common law doctrine involving the occurrence of o (1) an intent to abandon and - Must be proved by "clear and convincing evidence of unequivocal acts) - Is a question of fact to be decided by trier of fact o (2) an actual relinquishment or surrender of the water right. Forfeiture, predicated upon the statutory declaration that all rights to use water are lost where the appropriator fails to make beneficial use of the water for a continuous five-year period.

Beneficial use as a basis

Allocated water to those who had applied water to a beneficial use...determining beneficial uses that could be basis for acquiring a water right (initially mining and agriculture). beneficial uses in Colorado - irrigation - stock-water - domestic - municipal - power generation - fire control - industrial - commercial - recreation - snowmaking - augmentation - exchange

Colorado - rights for future uses [conditional decrees]

Although Colorado does not require permit for new appropriations, its conditional decrees serve similar purposes - ensuring large water projects will not lose priority to subsequent appropriator during the "typical lengthy development period" before water is put to beneficial use. - conditional decree holder must make a showing of "reasonable diligence" to water court every six years to perpetuate their right - failure to do so leads to cancellation of the water right (i.e., 40-50 years without any physical progress towards constructing diversion) *not rigorous process - conditional decree may be lost if city loses a contractual agreement to use a necessary diversion...must prove = "facilities necessary for the appropriation "can and will" be completed and the water put to a beneficial use within a reasonable time. * court considers > absolute + conditional decrees for which diversions already made * court doesn't consider > environmental factors, except do consider instream flow right if superior to subsequent appropriators

Sand Point Water & Light Co. v. Panhandle Development Co. - relation back rule (generally)

Appropriation of water may occur by either (i) diverting the water and applying it to a beneficial use or (ii) by the statutory method of posting and recording notice and commencing and prosecuting work within the statutory time frame. - storage alone is not a beneficial use; storage for future use for beneficial purposes is itself a beneficial purpose.

Estate of Steed v. New Escalante Irrigation Co.

Appropriators of waste water do not have a right to demand continuation of deliveries through a drainage system, nor can they acquire a prescriptive right to such water, nor any right except by grant. Upstream irrigator has right to completely consume all the water it diverted by using it over and over again, allowed to recapture waste water for re-use. o Except for when the (i) runoff or waste water returned to the stream from which it was originally diverted or (ii) it "commingled with water in natural water table"

Recommendations for Conveyance of Water Rights

Bargain and sale deed >>> for seller Special warranty deed >>> for buyer (but what not general warranty?)

Colorado Water Conservation District v. Vilder Tunnel

Can and will doctrine (anti-speculation doctrine) No claim for a conditional water right may be recognized or decreed except to extent it's established that the waters can and will be diverted, stored, or otherwise captured, possessed and controlled and and will be beneficially used and that the project can and will be completed with diligence and within a reasonable period of time. - Due diligence >> related to work on a specific diversion, NOT other past projects factors to evaluate *Economic feasibility *Status of permit applications *Expenditures *Conduct of engineering and environmental studies *Design and construction facilities *Land holdings/contracts showing demand for water that the rights will serve

Legal mechanisms to advance public interest in water - (1) state constitutions

Colorado *Art. 16 * less clearly enunciated than other like provisions *by Supreme Court has held that in absence of statute a water court may not consider evidence of (i) environmental or (ii) other public interest impacts in deciding whether to grant a decree for conditional water rights. a. But, there "is a principle that in its administration, there shall be a "maximum utilization of the water" allows division engineers to administer and curtail existing right to achieve an "optimum use" of water rights priorities b. Gives division engineer authority to consider all significant factors, including environmental and economic concerns, in administering all vested water rights (i.e., diffing deeper wells, upgrading diversions, compact obligations, hydrology & integrity of watershed Nebraska * water rights can be denied "when demanded by the public interest" * very legible and clearly enunciated New York

CWCB Initial Review process

Confidential review of water rights offered by Colorado Water Trust Assessment of potential streamflow benefits Identification of transaction options Practical Legal Solutions · Temporary Loans or Leases ¨ DWR approval for 5 in 10 y · Long Term Leases ¨ Water court change · Water Conservation Program ¨ Ass'n approval 5 in 10 y · Permanent Acquisitions ¨ Water court change

exceptions to the diversion requirement: livestock drinking from waters/ponds/marshes/streams

Considered to be diversions in California, Colorado, Idaho, and Nevada * not New Mexico; man-made diversion necessary

CWCB Evaluation process

Decreed diversion rate above 0.5 cfs; storage right above 20 af Water right that has... - Good history + record of use - Willing and able to change operations CWCB cannot accept · Conditional water rights · Ground water rights · Spring water rights · Rights on abandonment list

Improved vs developed water; City and County of Denver v. Fullerton Irrigation Ditch

Denver, in the absence of an agreement on its part not to do so, may (1) re-use, (2) make a successive use of, and (3) after use may make disposition of imported water. o Re-use - subsequent use of imported water for same purpose as the original use (i.e., treatment of sewage resulting in potable water, re-cycled into regular water system) o Successive use - subsequent use by the water importer for a different purpose (i.e., sewage treatment for further use for irrigation or industrial uses) o Right of disposition - right to sell, lease, exchange, or otherwise dispose of effluent containing foreign water after distributed through Denver's water system and collection in its sewer system.

In the Matter...Within the Missouri River Drainage Area (Montana, 2002)

Diversion is not required to appropriate water rights if diversion is unnecessary to use the water as intended; doctrinal review supports conclusion that it should not rigidly demand diversion where unnecessary to achieve the intended beneficial use. - Since 1960s, many prior appropriation states have been lessening strict requirements around actual, artificial diversions. - many activities, short of actual diversions, are recognized (i.e., stockwatering)

Colorado transfers + the public interest

Does not allow for consideration of public interest factors when reviewing water rights filings - SC has upheld imposition of conditions requiring revegetation of lands that are dried up when there is a change of use - CO legislature (2007): authorized water courts to impose conditions for wate quality protection on permanent transfers of more than 1,000 acre feet of water from irrigation to a new use * courts may impose term or condition if such transfer would cause a violation, or contribute to an existing violation, of CO water quality standards and again, maximum utilization of water requirement in administration of water rights

Colorado Water Courts (general information)

Established by the Water Right Determination Act of 1969; made up of seven divisions each with own water court @ district court level. Actors Involved (1) water judge - district court judges - have authority to confirm water rights; and determine all other water matters within their division - for water right to be administered, judge must enter a final decree (for trial track). (2) water referee - investigates applications, issues and makes rulings for consideration of water judge, discusses with Division Engineer, water commissioners and parties to the case (3) division engineer - perform the actual administration - perform technical analysis of all water cases - Chief CDWR officials for each division - prepare a summary of consultation (4) water clerk? "Summary of Consultation" - prepared by Division Engineer (who performs the actual administration of water rights); which discusses any issues, questions, or specific requirements that Devision Engineer has concerning a proposed water right

Coffin v. Left Hand Ditch Co.

First appropriation of water from a natural stream for a beneficial purpose has, with the qualifications contained in the constitution, a prior right to the extent of such an appropriation.

Right of Recapture: Colorado

First user of water does not have right to the seepage water; particularly for irrigation and agricultural water uses. Two distinct frameworks operating in Colorado (a) concept of return flow, and (b) presumption that surface water rights are hydrologically connected to ground water.

Legal mechanisms to advance public interest in water - (2) statutory authority

Generally, does not confer unlimited discretion on state agencies to make "optimum" allocation decisions 1. Utah 2. Washington 3. Nevada 4. Oregon public interest standards for transfers - some statutes impose standards on transfers beyond the "no injury" requirement - Wyoming * requires consideration of > economic loss > extent to which such economic loss will be offset by new use > whether other sources of water are available for the new source

Right of Recapture; Western States generally

Generally, in western states, water can be recaptured (salvaged) if: § (1) The total used does not exceed rights under a permit or decree § (2) The recapture and reuse occur within land for which the appropriation was made (on land not appurtenant) Under general rule - can save water but cannot apply it to non-decreed land

Pagosa Area Water & Sanitation Dist. v.. Trout Unlimited

Great and growing cities doctrine A governmental water supply agency has the burden of demonstrating three elements in regard to its intent to make a non-speculative conditional appropriation of unappropriated water (i) what is a reasonable water supply period (ii) what are the substantiated population projections based on a normal rate of growth for that period; and (iii) what amount of available unappropriated water is reasonably necessary to serve the reasonably anticipated needs of the gov. agency for the planning period, above its current water supply Additionally, must show that can and will test is satisfied; must demonstrate it's non-speculative intent and a specific plan and intent to divert/store/otherwise capture/possess/control.

Permitting states (generally)

In all permitting states (1) priority date = date permit applicant files application for a water rights permit (2) concepts of reasonable diligence remain important; permittee will keep priority date only if they act with reasonable diligence in completion of appropriation - in essence, all permitting states incorporate common law relation back doctrine

Water as an adjudicative property practice - in rem jurisdiction

In rem jurisdiction Water court obtains in rem jurisdiction over persons and water rights through the resume notice and newspaper publication of water court applications as provided in C.R.S. provision. --> look into this more

Wyoming Permit System (generally)

Involves a centralized control over water by government; appropriator under this system does not have choice between judicial/administrative acquisition of a water right - Administrative pursuit of water rights is the only option available - This is not an unconstitutional delegation of judicial functions to a non-judicial administrative agency. Denial of application can only be done when "demanded by the public interest" (permitted if applied to beneficial use, does not impair value of existing rights, or cause detriment to the public welfare). - once permit issued and work completed; applicant must submit proof that their water right has been perfected (must be done within five years of time allowed for completion of application of water to a beneficial use)

State ex rel. Crowley v. District Court

Junior appropriators take with notice of the conditions existing at the time of their appropriation. taking notice - including condition of stream and amount of water but the entirety of the water right; including the diversionary structure. - senior rights holder has right to the quantity as well as their method of diversion - expectation to know everyone's water right with an *earlier priority date* but not everyone on river.

State ex rel. Reynolds v. Miranda (NM) ["Intent" + "Diversion"]

Man-made diversion, together with intent to apply water to a beneficial use an actual application of water to beneficial use is necessary to claim water rights by appropriation in NM for agricultural purposes. - relies on Colorado case that requires an intent to appropriate as well as an actual appropriation in order for a man-made diversion to be unnecessary.

Transfers & Changes - The Closing

Preparation of documents for closing (title company usually will not prepare) · Bill of Sale · Stock Certificate Transfers/Assignments · Deeds, Deeds of Trust · Leases · Rights of Way · Wells

Colorado System [Judicial Determination of New Uses]

Prior to 1969, water rights adjudication was responsibility of district courts; but placed within a comprehensive statutory framework with enactment of the Water Right Determination and Administration Act of 1969 · Created the seven divisions of water courts · Applicants for a (i) conditional water right, (ii) absolute water right, or (iii) change in existing water right (including transfer) file application with water clerk · Monthly resumes of applications published in local newspaper + sent to potentially affected rights holders. ¨ Objectors have opportunity to file statements of opposition

Preferences for Particular Uses - Colorado

Provision in CO Constitution stating a preference for... domestic preferences > all others; and agriculture > manufacturing

Colorado System [Judicial Determination of New Uses] - Review

Referee's rulings are reviewed semi-annually by water judge (who can confirm, modify, or reverse) · Appeals go directly to the CO Supreme Court · Water rights can be lost through abandonment, rebuttable presumption arises after a 10 year period of non-use. ¨ After notification, opportunity for protest, and hearing before water judge; judge is empowered to declare water rights conclusively abandoned. · Division engineers compile and publish a tabulation of all water rights in their division every four years. Colorado postponement doctrine · No decree may be awarded with a priority date earlier than the most junior decree awarded in the previous calendar year.

State ex rel. Cary v. Cochran

Rule - Junior appropriators may use available water within the limits of their own appropriations so long as the rights of senior appropriators are not injured or damaged. o The use of water by junior appropriator does not become adverse or injurious to senior until it results in a deprivation of his allotted amount. o It is duty of administrator to determine from all available means whether or not a usable quantity. Of water can be delivered to senior user. There is no injury to senior water rights holders from junior users if the water would otherwise go to waste. If juniors are limited and senior appropriator still cannot receive a usable quantity of water, it is no longer reasonable.

Improved vs developed water; Southeastern Colo. Water Conservancy Dist. v. Shelton Farms, Inc

Rule - One who adds to an existing water supply is entitled to a decree affirming the use of such water, but strong evidence is required to prove the addition of water. - if changes are made to recover the water, it is still subject to the established water rights of historical appropriations o Three important situations, analogous to this case, where decrees granted: (i) physical transportation of water from another source, (ii) when one properly captures and stores flood waters, (iii) when one finds water within the system, which would never have normally reached the river or its tributaries. Thus, distinction between "developed" and "salvaged" water · Developed - implied new waters not previously part of river system; free from call of river · Salvaged - implies waters in the river or its tributaries (including aquifer) which ordinarily would go to waste, but somehow are made available, subject to call by prior appropriators. "Maximum utilization of water" (or optimal use) - Twin mandates of (i) vested rights and (ii) maximum utilization of no injury standard implication of standard is that until senior consumers have been saturated to fulfillment, any displacement of water from the time and place of their need is harmful to them. - Meant to answer big picture question of: how can all water right holders in priority system continue to develop their water rights + land connected to it, in ways that encourage efficiencies?

State Department of Ecology v. Grimes

Rule - beneficial use encompasses two principal elements of a water right o (1) refers to the purposes, or types of activities it may be used o (2) determines the measure of a water right - Owner of water right is entitled to the amount of water reasonably necessary for the purpose to which it has been put, provided that purpose constitutes a beneficial use. - Reasonable use = determine by analysis of water duty and waste

transfer & changes summary -scope + validity; extent of use; determination of historical return flows; terms and conditions to prevent injury

Scope and validity - Original water decree; no enlargement of right. Extent of use of the decreed right - Historical consumptive use; matter of use over a representative study period at original point of diversion Determination of historical return flows - Including the extent, timing, and place - Limited to duty of water with respect to original decreed place of use Terms and conditions to prevent injury - To other water rights - Future diversions limited to historical amount and season of diversion - Limited to duty of water with respect to original decreed place of use

Transfers & Changes - Chain of Title

Shows all transfers of the land and water with names of the seller, buyer, date of the sale, date of recording, legal description of land and water

Wyoming Hereford Ranch v. Hammond Packing (1925)

State has a valid interest in ensuring beneficial use; the permit system requiring application and approval is an appropriate exercise by the state.

Montana Permit System

Structure - Each division has a district judge designated as a water judge who issue preliminary decrees, or temporary preliminary decrees (in cases of tribal or federal claimed water rights) >> then, persons may file objections and obtain hearings (also time consuming) >> water judge may or may not then revise the prelim. decree, followed by further proceedings >> water judge issues final decree which is then appealable to Montana Supreme Court. - Results; many unadjudicated water rights, extremely time-intensive process; even more challenging to verify accuracy of adjudications or claims (i.e., insufficient number of field investigations) § When acquiring a new right; permit system looks like many other states' permitting systems. § Permit system is exclusive means of obtaining water rights, but governmental entities may apply to the DNRC Board for a reservation of water for present or future use. § Montana courts have continually upheld the water adjudication process over constitutional challenges § Priority date = filing date of the permit application

Irwin v. Phillips

The first person to use or divert water from its natural course has a right to continued use superior to the rights of subsequent users. - riparian law not implicated because the dispute exclusively involved public lands.

Empire Water & Power Co v. Cascade Town Co. (1913) ["Intent" + "Diversion"]

The use of a waterway for recreational purposes is a beneficial use sufficient to convey a water right. - intent is demonstrated and manifested, not through diversion of water but instead through construction and development of the resort. - aesthetic value is not, in itself, a beneficial use...water need not be applied exclusively to one of the codified classifications in state Constitution - may be, and is both, "like that of an ordinary city with its homes, business places, parks, and public grounds

H.C.U. Analysis for irrigated crops

Water Engineers... - analyze amount of water consumed by crops using complex engineering formulae such as Blaney-Criddle and Menmen-Monteith - analyze amount and rate of water returned to stream historically either on surface or underground A representative study period is selected which should include wet years, dry years, and average years of precipitation. * this is where a lot of the time and expenses of litigation/water adjudication accrues

Beneficial use as a measure

Water duty Measure of water, which, by careful management and use, without wastage, is reasonably required to be applied to any given tract of land for such period of time as may be adequate to produce therefrom a maximum amount of such crops as ordinarily are grown thereon. Not a hard and fast unit of measurement, variable according to conditions.

"carry over storage"

When reservoir still has water left at end of release season; helps ensure reservoir will fill next storage season. - "back-stops" prior appropriation doctrine - Idaho Supreme Court held "to permit excessive carry-over of stored water without the need for it would be in itself unconstitutional." * The rules do guarantee storage right holders a reasonable amount of carry-over storage

Alternative approaches to instream protection

Wild & Scenic Rivers Act Endangered Species Protection Water Quality Regulation and Permitting Public Trust Doctrine · Rejected by the Supreme Court

instream flow protections (generally)

[from nutshell book]

Alternative Transfer Mechanisms - (2) interruptible water supply agreements

allow administrative (SEO) approval of temporary transfers of HCU to another type or place of use without a permanently adjudicated change still subject to the priority system intended to increase flexibility for use of same water right for multiple parties/purposes

Relation back doctrine

allows an appropriator to perfect a water right with a priority date as of the time an intent to appropriate was first formed [1] "manifest the intent" [2] demonstrate a substantial step toward application to a beneficial use; that constitutes notice to interested parties (first "open act") - not deemed complete until actual diversion or use of water, but so long as right "prosecuted with reasonable diligence" it relates back to when first step was taken to secure it (when notice posted). - priority date is generally the date of an application for a conditional right in Colorado; but will only relate back to point of "first step" taken to actually appropriate

Beneficial use as the basis, measure, and limit

basis § Domestic § Municipal § Agricultural § Industrial § Others · Stock watering, power, mining, recreation, fish and wildlife measure = duty of water That measure of water, which, by careful management and use, without wastage, is reasonably required to be applied to any given tract of land for such period of time as may be adequate to produce there from a maximum amount of such crops as ordinarily are grown thereon. Not a hard and fast unit of measurement but is variable according to conditions. Farmers Highline Canal v. City of Golden (Colo. 1954) - in transfer; amount of water original decreed or disclosed in permit is not necessarily the amount which may be transferred to a new place of use. limit See State ex rel. Cary v. Cochran (Nebraska, 1940). FINISH

Beneficial use; reasonable use; water duty; waste - definitions

beneficial use - defines the type of use and measure of the water use reasonable use - the amount of water necessary for beneficial use, based on the water duty and waste water duty - actual amount or measure of water reasonably required for a particular use in a particular location waste - water use that exceeds reasonable and economic use for the particular beneficial use

Augmentation and Exchange Plans

broad category of water operations designed to increase the supply of water available for beneficial use used to achieve "maximum utilization of water" while protecting senior water rights in over-appropriated streams. Fellhauer v. People

Local water supply orgs. (private); acequias

community ditch that were/still are key part of the fabric of centuries old communities in upper Rio Grande basin; source of great culture and rich tradition.

"direct flow" rights versus storage rights

direct (or natural) flow rights - attach to water that is put to immediate beneficial use; often expressed in terms of rate of flow storage rights - attach to water retained for later beneficial use; are often expressed in terms of rate of flow - once lawfully stored, not subject to call by senior users

Local water supply orgs (private); carrier ditch companies

distribute irrigation water for the profit of investors - are essentially nonexistent now.

Ditch vs parcel-wide H.C.U. analysis

ditch wide - under 1969 Act, water courts have jurisdiction to quantify the H.C.U. attributable to each share of an entire water right on a ditch-wide basis and impose terms + conditions that are binding in future cases involving the same water right parcel wide - only H.C.U. of shares being changed in case are analyzed * applies to storage rights

List of some beneficial uses specified in different state law

domestic; municipal; irrigation/agriculture; industrial; stock-watering; power; mining; recreation; fish & wildlife *bolded are specified by Colorado law All prior appropriation states consider (i) domestic, (ii) municipal, and (iii) agricultural uses to be beneficial. Just because use is among a type listed does not mean it will be deemed "beneficial" under the circumstances or for all time.

Local water supply organizations

entities charged with the allocation of water resources among the ultimate users, primary water managers. treated like any other competitors for available water supplies and thus their acquisition, exercise, and transfer of water rights are governed by the general rules of water law (+ a few select special rules that pply only to them)

Local water supply orgs (private); irrigation districts

fee collecting entities controlled by local landowners; have been constitutionally upheld by state SC (ours??) intended to "add financial stability to local irrigation enterprises" by allow districts to incur indebtedness for which all of the potentially benefitted landowners in district are liable; but many districts suffered financial failure *Act became model for irrigation district states in all of the seventeen western states - creatures of state law - public, involuntary (in contrast with mutual ditch companies) - formed to finance large irrigation projects that may not be feasible for individual irrigators

exceptions to the diversion requirement: instream appropriations of water despite lack of diversion

instream appropriation - generally requires that a certain amount of water be left to flow through a stretch of stream in order to protect fish and wildlife; scenic beauty; or water-borne recreation - in most states, instream flows may be appropriated only be a state agency (but some may be able to act upon requests of private individuals, other state agencies, fed gov.) * in every state that allows for private ownership of instream water rights is allowed, it must satisfy the beneficial use requirement. - Colorado * allows instream flows to be appropriated exclusively by the state Water Conservation Board upon a finding that it will "preserve the natural environment to a reasonable degree"

Resources for Title Investigation

legal/commercial resources (a) state water/real estate law (b) real estate title standards (c) deeds and other documents in seller's chain of title (d) water right decrees; well permits (e) court documents affecting title; i.e., court files (f) county land use regulations / municipal annexation requirements (g) ditch company records matters outside the record (h) ditch company by-laws (i) expansion of uses - see Greene case: may be more or less water actually being taken than decreed, or application to larger/smaller area of land (j) abandonment, forfeiture, and adverse possession

Alternative Transfer Mechanisms - (3) leases

many IWSAs are structured as leases - most commonly known - Aurora/High Line Canal Company Lease - used in drought planning and recovery for Aurora after 2002 drought - offered to all shareholders for 2003/04 water year + optional lease for 2005.

Local water supply orgs (private); mutual ditch/water companies

nonprofit entities under control of local local water users, sometimes exempted from regulation as public utilities in some states grew out of neighborhood + community construction of ditches - were often formed by land speculators as part of schemes to develop and market lands

Interruptible Water Supply Agreements (IWSAs); pros and cons

pros - utilized as needed - administrative nature can accommodate unique terms and conditions ("option agreement") - can be renewed for up to 2 additional 10-year periods - can increase flexibility and maximize beneficial use of water rights - can ease transition as CO's population grows - minimize "buy and dry"? still begs this question cons - cannot be used more than 3 times in 10 year period; must use all the water - still requires application, notice, publication, and engineering *still subject to input from outsiders * still subject to priority system - remediation of land required - administrative nature gives SEO discretion to modify proposed terms and conditions - appeal directly to water judge - annual notice of use required by March 1 - IWSA water cannot be included in an SWSP (what is this?) - SEO cannot approve out-of-priority depletions or replacement

Alternative Transfer Mechanisms - (1) water banking

provides opportunity to create incentives (i.e., cap and trade) for water rights holders to pool water resources from which anyone can make withdrawals based on their need - voluntary, market-based tool - a "bank" facilitates trades between water right users and holders * to put water rights in bank and also apply it to a particular set of uses - transfer rights instead of water - requires no engineering, or reengineering, to take place. - putting "paper water" in bank versus actual water

"referee track" versus "trial track"

referee track - refers to cases that will take less than 18 months trial track - refers to cases that will take more than 18 months.

exceptions to the diversion requirement: actual diversions

several states no longer require actual diversion if intent to appropriate, notice to others, and application to beneficial use are clearly established - Montana, Colorado (Cascade Town case)

California System

§ Prior appropriation permit system administered by the State Water Resources Control Board § Anyone wishing to appropriate surface water or water in "subterranean streams flowing in known and definite channels" must obtain permit. · Permit system is not exclusive; some users with rights to surface waters are not required to comply with permitting process. (i.e., riparian owners, appropriators prior to 1914, users of spring waters originating/remaining on their land, cities with pueblo rights) · But, many should file statements of water diversions and use Annual progress reports required annual, or permit is revoked.

Transfers & Changes - basic principles of water as a transactional property right

Ø Mere ownership of land adjacent to water gives no right to use the water Ø Water right is a vested property right Ø Water rights are not permanently tied to specific land but may be sold for use on other land Ø Water rights transfers are subject to the same formal requirements as other forms of real property (exception - ditch shares) CRS § 38-30-102(2) Ø "In the conveyance of water rights in all cases, except where the ownership of stock in ditch companies or other companies constitutes the ownership of a water right, the same formalities shall be observed and complied with as in the conveyance of real estate." -> water rights conveyances to mutual ditch/irrigation companies are not subjected to same rules as the conveyance of real estate; all other water rights conveyances are treated the same.