Colorado § 37-82-106 - Right to reuse of imported water.

§ 37-82-106. Right to reuse of imported water.

(1) Whenever an appropriator has lawfully introduced foreign water into a stream system from an unconnected stream system, such appropriator may make a succession of uses of such water by exchange or otherwise to the extent that its volume can be distinguished from the volume of the streams into which it is introduced. Nothing in this section shall be construed to impair or diminish any water right which has become vested.

(2) To the extent that there exists a right to make a succession of uses of foreign, nontributary, or other developed water, such right is personal to the developer or his successors, lessees, contractees, or assigns. Such water, when released from the dominion of the user, becomes a part of the natural surface stream where released, subject to water rights on such stream in the order of their priority, but nothing in this subsection (2) shall affect the rights of the developer or his successors or assigns with respect to such foreign, nontributary, or developed water, nor shall dominion over such water be lost to the owner or user thereof by reason of use of a natural watercourse in the process of carrying such water to the place of its use or successive use.

Source: L. 1891: p. 402, § 1. R.S. 08: § 3178. C.L. § 1641. CSA: C. 90, § 24. CRS 53: § 147-2-6. L. 69: p. 1223, § 21. C.R.S. 1963: § 148-2-6. L. 79: Entire section amended, p. 1366, § 2, effective June 22.

ANNOTATION

Law reviews. For article, "Appropriations of Water for a Preferred Purpose", see 22 Rocky Mt. L. Rev. 422 (1950). For article, "Foreign Water in Colorado — The City's Right to Recapture and Re-Use Its Transmountain Diversion", see 42 Den. L. Ctr. J. 116 (1965). For article, "The Effect of Water Law on the Development of Oil Shale", see 58 Den. L.J. 751 (1981). For article, "Colorado's Law of 'Underground Water': A Look at the South Platte Basin and Beyond", see 59 U. Colo. L. Rev. 579 (1988). For article, "Water Reuse and Exchange Plans", see 17 Colo. Law. 1083 (1988). For comment, "Colorado's Foreign Water Doctrine: License To Speculate", see 60 U. Colo. L. Rev. 1113 (1990).

Even without statute, user of imported water has rights of re-use, successive use, and disposition of foreign water, subject to contrary contractual obligations. City & County of Denver v. Fulton Irrigating Ditch Co., 179 Colo. 47, 506 P.2d 144 (1972).

In order to minimize amount of water removed from western Colorado, eastern slope importers should, to maximum extent feasible, reuse and make successive uses of foreign water. City & County of Denver v. Fulton Irrigating Ditch Co., 179 Colo. 47, 506 P.2d 144 (1972).

"Re-use" means subsequent use of imported water for same purpose as original use. City & County of Denver v. Fulton Irrigating Ditch Co., 179 Colo. 47, 506 P.2d 144 (1972).

"Successive use" means subsequent use by water importer for different purpose. City & County of Denver v. Fulton Irrigating Ditch Co., 179 Colo. 47, 506 P.2d 144 (1972).

"Right of disposition" means right to sell, lease, exchange or otherwise dispose of effluent containing foreign water after distribution through importer's water system and collection in its sewer system. City & County of Denver v. Fulton Irrigating Ditch Co., 179 Colo. 47, 506 P.2d 144 (1972).

Mutual ditch company had right to reuse and successive uses of water to be imported to one river drainage system from another river drainage system for storage in reservoir pursuant to conditional water right. Water Supply and Storage Co. v. Curtis, 733 P.2d 680 (Colo. 1987).

Importer of water has burden of demonstrating identity of imported water when establishing rights of re-use, successive use, and disposition. City & County of Denver v. Fulton Irrigating Ditch Co., 179 Colo. 47, 506 P.2d 144 (1972).

When importer delivers water to customer tap, it does not lose dominion over water later returning to its sewer. City & County of Denver v. Fulton Irrigating Ditch Co., 179 Colo. 47, 506 P.2d 144 (1972); Pub. Serv. Co. v. Willows Water Dist., 856 P.2d 829 (Colo. 1993).

Dominion may be maintained when water is delivered to customers' taps for irrigation purposes. Pub. Serv. Co. v. Willows Water Dist., 856 P.2d 829 (Colo. 1993).

Sufficient evidence supported the water court's finding that a water district demonstrated that the water it intended to recapture was its nontributary ground water and not water from the natural stream, and thereby proving noninjury to other holders of water rights. Despite questionable methods used by the water district to measure the water return flows, the challenging public service company did not demonstrate that the water district failed to produce sufficient evidence. Pub. Serv. Co. v. Willows Water Dist., 856 P.2d 829 (Colo. 1993).

Appropriators on stream have no vested right to continuance of importation of foreign water which another has brought to watershed. City & County of Denver v. Fulton Irrigating Ditch Co., 179 Colo. 47, 506 P.2d 144 (1972); Santa Maria Reservoir Co. v. Warner, 2020 CO 27, 461 P.3d 478.

Plan of exchange subject to this section involving foreign water does not fall within definition of a change of water right and is not subject to retained jurisdiction of water court. City of Florence v. Bd. of Waterworks, 793 P.2d 148 (Colo. 1990).

This section expressly establishes that the rules applicable to foreign water differ from the rules that govern the use of native water. City of Thornton v. Bijou Irrigation Co., 926 P.2d 1 (Colo. 1996).

An importer of transmountain water has a right to reuse that does not exist for appropriators of native water. An importer of water into the stream system has the right to reuse, to extinction, the water it imports. City of Thornton v. Bijou Irrigation Co., 926 P.2d 1 (Colo. 1996).

A plain reading of this statute suggests that the legal importation of foreign water is the only prerequisite for future reuse and successive use of such water. City of Thornton v. Bijou Irrigation Co., 926 P.2d 1 (Colo. 1996).

An importer of foreign water is not required to meet the requirements for appropriation, including intent and beneficial use, to acquire a right of reuse. City of Thornton v. Bijou Irrigation Co., 926 P.2d 1 (Colo. 1996).

The right to reuse foreign water cannot be abandoned, it remains with the importer until the right is transferred by the importer or the importation ceases. City of Thornton v. Bijou Irrigation Co., 926 P.2d 1 (Colo. 1996).

The importer does not need to maintain physical control over the waters. When the foreign water can no longer be distinguished volumetrically, it becomes part of the natural stream and cannot be reused by the importer. However, this requirement attaches for each importation so that a current failure to distinguish the volume of foreign water from the receiving stream does not preclude future distinction and reuse. City of Thornton v. Bijou Irrigation Co., 926 P.2d 1 (Colo. 1996).

The right to reuse foreign water is not subject to abandonment by non-use. City of Thornton v. Bijou Irrigation Co., 926 P.2d 1 (Colo. 1996).

A downstream water user of return flows from imported water cannot claim injury arising from a change of use of the imported water because the downstream water user has no vested right in the water's importation. Santa Maria Reservoir Co. v. Warner, 2020 CO 27, 461 P.3d 478.