Colorado § 37-83-104 - Reservoirs and ditches may exchange.

§ 37-83-104. Reservoirs and ditches may exchange.

When the rights of others are not injured thereby, it is lawful for the owner of a reservoir to deliver stored water into a ditch entitled to water or into the public stream to supply appropriations from said stream and take in exchange therefor from the public stream higher up an equal amount of water, less a reasonable deduction for loss, if any there be, to be determined by the state engineer. The person or company desiring such exchange shall be required to construct and maintain, under the direction of the state engineer, measuring flumes or weirs and self-registering devices at the point where the water is turned into the stream or ditch taking the same or as near such point as is practicable so that the division engineer may readily determine and secure the just and equitable exchange of water.

Source: L. 1897: p. 177, § 4. R.S. 08: § 3225. C.L. § 1705. CSA: C. 90, § 103. CRS 53: § 147-6-4. C.R.S. 1963: § 148-6-4.

ANNOTATION

"Owe the river" accounting method was insufficient to effectuate an exchange of waters to the extent that Denver took water from the South Platte before notifying either the division or state engineer that a corresponding release would be required and was available. In order for the division and state engineers to effectively exercise their discretion in administering water rights so as to protect the rights of downstream senior appropriators, the engineers must be notified in advance of a diversion that might affect those rights. City of Denver v. City of Englewood, 826 P.2d 1266 (Colo. 1992).

Nothing in statute mandates that water diverted by exchange must take on the "character" of the substitute supply. Although the "character of exchange" rule has emerged as an unofficial, permissive practice recognized by the state engineer, it does not appear in statute nor has it been expressly applied in case law or its scope defined. Therefore, the court declined to hold that the character of exchange concept functions as a mandatory rule that rigidly applies to all exchange operations. Concern. App. Water Rights City County Denv., 2019 CO 68, 444 P.3d 278.