Colorado § 37-81-101 - Diversion of water outside state - application required - special conditions - penalty.

§ 37-81-101. Diversion of water outside state - application required - special conditions - penalty.

(1) (a) The general assembly hereby finds and declares that the location and availability of water in this state varies greatly from place to place and that the state as a whole suffers a shortage of water. The general assembly further recognizes that, because of Colorado's unique location at the headwaters of four of the nation's major western rivers and because all the major river systems in Colorado flow out of the state, and that, in order to ensure the availability of these scarce water resources for the use of citizens of the state of Colorado, compacts have been entered into with the downstream states on all the major rivers originating in Colorado.

(b) It is also recognized that it has been the continuing historical policy of the state of Colorado to conserve and prevent waste of its water resources to provide adequate supplies of water necessary to ensure the continued health, welfare, and safety of all of its citizens. Accordingly, the general assembly hereby determines that, for the purpose of conserving the scarce water resources of this state and to thereby ensure the continuing health, welfare, and safety of the citizens of this state, it is unlawful for any person, including a corporation, association, or other entity, to divert, carry, or transport by ditches, canals, pipes, conduits, natural streams, watercourses, or any other means any of the water resources found in this state into any other state for use therein without first complying with this section and section 37-81-104.

(2) To effectuate the purposes of subsection (1) of this section and section 37-81-104, no person may divert, carry, or transport any surface or groundwater from this state by ditches, canals, pipes, conduits, natural streams, watercourses, or other means without meeting the requirements for obtaining a permit to construct a well if the source of water is to be groundwater or if a well permit is not required without first obtaining an adjudication from the water court for the right to use water outside the state. In the case of a well for which a permit has been issued for a use of groundwater within Colorado, a change of use for a use outside the state must be approved by the water court or, if it is designated groundwater, the change must be approved by the Colorado ground water commission. A person desiring to divert, carry, or transport any water outside Colorado shall file an appropriate application therefor and comply with the requirements of this section in addition to any other requirements, terms, and conditions provided or authorized by law pertaining to such application.

(3) Prior to approving an application, the state engineer, ground water commission, or water judge, as the case may be, must find that:

(a) The proposed use of water outside this state is expressly authorized by interstate compact or credited as a delivery to another state pursuant to section 37-81-103 or that the proposed use of water does not impair the ability of this state to comply with its obligations under any judicial decree or interstate compact which apportions water between this state and any other state or states;

(b) The proposed use of water is not inconsistent with the reasonable conservation of the water resources of this state; and

(c) The proposed use of water will not deprive the citizens of this state of the beneficial use of waters apportioned to Colorado by interstate compact or judicial decree.

(4) Any diversion of water from this state which is not in compliance with this section shall not be recognized as a beneficial use for purposes of perfecting a water right to the extent of such unlawful diversion or use.

Source: L. 17: p. 539, § 1. C.L. § 1618. CSA: C. 90, § 1. CRS 53: § 147-1-1. C.R.S. 1963: § 148-1-1. L. 79: Entire section amended, p. 1364, § 1, effective May 31. L. 83: Entire section R&RE, p. 1410, § 1, effective June 3. L. 85: (1)(b) and (2) amended, p. 287, § 7, effective May 23.

Cross references: For water of streams being public property, see § 5 of art. XVI, Colo. Const.

ANNOTATION

Law reviews. For article, "A Missouri Valley Authority — Its Effect Upon Water Appropriation, Use, State Control and Vested Rights", see 18 Rocky Mt. L. Rev. 1 (1945). For article, "Flood Control Projects and River Compacts", see 22 Rocky Mt. L. Rev. 462 (1950). For note, "Water Pollution Control in Colorado", see 36 U. Colo. L. Rev. 413 (1964). For article, "Intergovernmental Relations and Energy Taxation", see 58 Den. L.J. 141 (1980). For article, "The Effect of Water Law on the Development of Oil Shale", see 58 Den. L.J. 751 (1981). For article, "State Prohibitions on the Interstate Exportation of Scarce Water Resources", see 53 U. Colo. L. Rev. 529 (1982). For comment, "Do State Restrictions on Water Use by Slurry Pipelines Violate the Commerce Clause?", see 53 U. Colo. L. Rev. 655 (1982). For article, "Sporhase, El Paso, and the Unilateral Allocation of Water Resources: Some Reflections on International and Interstate Groundwater Law", see 57 U. Colo. L. Rev. 549 (1986).

The state has the ownership and the right to control its own natural streams, and power and authority to regulate the distribution of their waters, within its own territory, for beneficial purposes. Kan. v. Colo., 206 U.S. 46 (1907); Stockman v. Leddy, 55 Colo. 24, 129 P. 220, (1912) (cases decided prior to earliest source of this section).

Constitutional provisions, implementing statutes, and decisions of this court, all recognize the great public and private benefits which emanate from conserving and putting to beneficial use, at the earliest practical time, all of the waters of the natural streams of the state of Colorado. Metro. Sub. Water Users Ass'n v. Colo. River Water Conservation Dist., 148 Colo. 173, 365 P.2d 273 (1961).

A natural watercourse may be used as a conduit or outlet for the drainage of lands, at least where the augmented flow will not tax the stream beyond its capacity and cause the flooding of adjacent lands. Ambrosio v. Perl-Mack Constr. Co., 143 Colo. 49, 351 P.2d 803 (1960).

The owner of the upper or dominant estate has a legal and natural easement or servitude in the lower or servient estate for the drainage of surface waters, flowing in its natural course and manner. Ambrosio v. Perl-Mack Constr. Co., 143 Colo. 49, 351 P.2d 803 (1960).

The city of Denver has a legal as well as a natural easement for servitude on the lands downstream for drainage or surface water flowing in its natural course. City & County of Denver v. Stanley Aviation Corp., 143 Colo. 182, 352 P.2d 291 (1960).

Where one purchases his land in the lowest point next to a river, his land is burdened with the easement of carrying the water which naturally flows from all of the land above it. Ambrosio v. Perl-Mack Constr. Co., 143 Colo. 49, 351 P.2d 803 (1960); City & County of Denver v. Stanley Aviation Corp., 143 Colo. 182, 352 P.2d 291 (1960).

It is a general doctrine in which the authorities almost universally concur that a city is not bound to protect from surface waters those who may be so unfortunate as to own property which is below the general level of the street. City & County of Denver v. Stanley Aviation Corp., 143 Colo. 182, 352 P.2d 291 (1960).

The taking of the water for use in the operation of the hatchery is for a public purpose. Farmers Irrigation Co. v. Game & Fish Comm'n, 149 Colo. 318, 369 P.2d 557 (1962).

When the game and fish commission diverted water from a creek and channeled it through a hatchery where it was so polluted as to render it unfit for the purposes to which it had theretofore been applied by plaintiffs, plaintiffs' property rights therein were destroyed or seriously damaged. Farmers Irrigation Co. v. Game & Fish Comm'n, 149 Colo. 318, 369 P.2d 557 (1962).

Notwithstanding a claim of sovereign immunity from a suit for damages resulting from the torts of agents of the state, upon a showing that the water rights of plaintiffs had been taken or damaged by game and fish commission through pollution of the water, entitled them to relief in the form of "just compensation" for the property so taken or damaged, and to injunctive relief against a continuance thereof. Farmers Irrigation Co. v. Game & Fish Comm'n, 149 Colo. 318, 369 P.2d 557 (1962).

The relationship between this section and a Nebraska statutory provision concerning exportation of water is applied in Sporhase v. Neb., 458 U.S. 941 (1982) (decided under former § 37-90-136).