Colorado § 37-87-101 - Storage of water.

§ 37-87-101. Storage of water.

(1) (a) The right to store water of a natural stream for later application to beneficial use is recognized as a right of appropriation in order of priority under the Colorado constitution. No water storage facility may be operated in such a manner as to cause material injury to the senior appropriative rights of others. Acquisition of those interests in real property reasonably necessary for the construction, maintenance, or operation of any water storage reservoir, together with inlet, outlet, or spillway structures or other facilities necessary to make such reservoir effective to accomplish the beneficial use or uses of water stored or to be stored therein, may be secured under the laws of eminent domain.

(b) State agencies shall, to the maximum extent practicable, cooperate with persons desiring to acquire real property for water storage structures.

(2) Underground aquifers are not reservoirs within the meaning of this section except to the extent such aquifers are filled by other than natural means with water to which the person filling such aquifer has a conditional or decreed right.

(3) (a) Water attributable to a water right for which a previous change of water right has been judicially approved, that has been decreed for storage, and for which the historical consumptive use was previously quantified may be stored in any reservoir that is located on the same ditch or diversion system, including a nontributary aquifer if the requirements of subsection (2) of this section are complied with, as an alternate place of storage if:

(I) The water that is to be stored at the alternate place of storage is diverted from a point of diversion that has already been decreed for that water right;

(II) The owner or operator of the storage water right gives previous notice to the division engineer that identifies the water right, alternate place of storage, decreed point of diversion, and how the storage of the water in the alternate place of storage will be accounted for;

(III) Transit and ditch losses, if applicable, are assessed against the water right from the decreed point of diversion to the alternate place of storage; and

(IV) The division engineer has approved the accounting for the storage of the water in the alternate place of storage.

(b) A person who is entitled to claim injury to a water right has the right to a de novo hearing before the water court to argue that an alternate place of storage injures the person's water right.

(c) Nothing in this subsection (3) allows the storage of water in an alternate place of storage if that water was imported from another water division.

(d) Other than the place of storage, all of the terms and conditions of the previous change of water right decree continue to apply to the water right.

Source: L. 1879: p. 106, § 38. G.S. § 1724. R.S. 08: § 3202. C.L. § 1682. L. 35: p. 661, § 1. CSA: C. 90, § 79. CRS 53: § 147-5-1. C.R.S. 1963: § 148-5-1. L. 79: Entire section amended, p. 1367, § 3, effective June 22. L. 84: (1) R&RE, p. 961, § 1, effective April 30. L. 86: (1) R&RE, p. 1087, § 1, effective July 1. L. 2003: (1) amended, p. 1368, § 3, effective April 25. L. 2017: (3) added, (HB 17-1291), ch. 338, p. 1804, § 1, effective August 9.

Cross references: For proceedings and procedures for taking private property for public use, see § 15 of art. II, Colo. Const., and article 1 of title 38; for condemnation of property and water rights by cities and towns, see article 6 of title 38.

ANNOTATION

I. General Consideration.

II. Immediate Use of Water.

III. Cooperation by State Agencies.

I. GENERAL CONSIDERATION.

Law reviews. For comment on People ex rel. Park Reservoir Co. v. Hinderlider, 98 Colo. 505, 57 P.2d 894 (1936), appearing below, see 9 Rocky Mt. L. Rev. 91 (1936). For article, "Revision of Water and Irrigation Statutes", see 31 Dicta 29 (1954). For article, "Water for Oil Shale Development", see 43 Den. L.J. 72 (1966). For note, "A Survey of Colorado Water Law", see 47 Den. L.J. 226 (1970). For article, "Reviving the Public Ownership, Antispeculation, and Beneficial Use Moorings of Prior Appropriation Water Law", see 84 U. Colo. L. Rev. 97 (2013).

As this section stands it is a grant, and the court is not at liberty to write into it, by way of interpretation, the word "only", so as to read "Persons desirous to construct and maintain reservoirs, for the purpose of storing water, shall have the right to take. . . (only) any unappropriated water. . . for irrigating purposes." To do this would make this section a prohibition. People ex rel. Park Reservoir Co. v. Hinderlider, 98 Colo. 505, 57 P.2d 894 (1936).

The court said it assumed without deciding, that this section was in force, and that the general assembly was not prohibited by the constitution from passing it with the word "thereafter" inserted, so as to read "Persons desirous to construct and maintain reservoirs, for the purpose of storing water, shall have the right to take from any of the natural streams of the state and store away any unappropriated water not (thereafter) needed for immediate use for...irrigating purposes" and that such is its proper interpretation. People ex rel. Park Reservoir Co. v. Hinderlider, 98 Colo. 505, 57 P.2d 894 (1936).

Where a corporation constructed the embankment of a reservoir in the bed of a stream, but applied the water to no beneficial use, and it afterwards conveyed the reservoir site to another, reserving any appropriation of priority which it had acquired by reason of construction, it was held, that having never applied the water to any beneficial use, it had nothing to reserve, and the reservation accomplished nothing. Windsor Reservoir & Canal Co. v. Lake Supply Ditch Co., 44 Colo. 214, 98 P. 729 (1908).

Where plaintiff claiming to be entitled to the waters of a certain stream, for storage, between certain dates, brought an action to restrain the officials of the water service from enforcing an order of the division engineer which required the water commissioner of the district to cease the storing of water, during the same period, it was held that the appropriators for direct irrigation in other districts of the division would, of necessity, be affected by the decree and were indispensable parties. Comstock v. Larimer & Weld Reservoir Co., 58 Colo. 186, 145 P. 700 (1914).

Where one claiming the right to water for storage seeks to restrain its application to direct irrigation, it is not sufficient to aver merely an appropriation for storage and a decree establishing the right because the complaint must go further and show that the plaintiff's right is relatively prior to that asserted by those against whom the relief is sought. Comstock v. Larimer & Weld Reservoir Co., 58 Colo. 186, 145 P. 700 (1914).

When water has escaped from a reservoir and become a part of the underground waters, its identification as reservoir water is impracticable, if not impossible, and the rule to be applied in such a case must take account of the rights of others, and be of general and practicable application. Ft. Morgan Reservoir & Irrigation Co. v. McCune, 71 Colo. 256, 206 P. 393 (1922).

Water escaping from a reservoir or a ditch, underground, and becoming percolating water which will naturally reach a public stream, must be regarded as a part of the stream, and it belongs to the appropriators in the order of their priorities when needed, and cannot be made the subject of a direct appropriation. Ft. Morgan Reservoir & Irrigation Co. v. McCune, 71 Colo. 256, 206 P. 393 (1922).

There was no need to exercise a private right of eminent domain or any trespass where an aquifer recharge and water storage rights application did not involve the construction of any project facilities on land owned by a third party. Bd. of County Comm'rs v. Park County Sportsmen's Ranch, 45 P.3d 693 (Colo. 2002).

The justice of allowing reservoir companies to control the water which they have diverted is not to be questioned; but it should be borne in mind that they do not own the water, but have only a right to its use; which use must be consistent with the rights of other appropriators. Ft. Morgan Reservoir & Irrigation Co. v. McCune, 71 Colo. 256, 206 P. 393 (1922).

In addition, the water so diverted and stored must be beneficially applied; that is, in this instance, it must have been applied to lands for the purposes of irrigation. Thomas v. Guiraud, 6 Colo. 530 (1883); Sieber v. Frink, 7 Colo. 148, 2 P. 901 (1883); Wheeler v. N. Colo. Irrigation Co., 10 Colo. 582, 17 P. 487 (1887); Farmers' High Line Canal & Reservoir Co. v. Southworth, 13 Colo. 111, 21 P. 1028 (1889); Ft. Morgan Land & Canal Co. v. S. Platte Ditch Co., 18 Colo. 1, 30 P. 1032 (1892); Woods v. Sargent, 43 Colo. 268, 95 P. 932 (1908); Highland Ditch Co. v. Union Reservoir Co., 53 Colo. 483, 127 P. 1025 (1912).

A decree awarding a priority to a reservoir providing that sufficient water should be permitted to flow from the source of supply into the reservoir to satisfy the volume of the priority when "not needed for immediate use for domestic or irrigation purposes", is presumably in part based upon this section. Highland Ditch Co. v. Union Reservoir Co., 53 Colo. 483, 127 P. 1025 (1912).

In an eminent domain proceeding to condemn land for a reservoir site, a report of commissioners based upon undisputed evidence but not supported by any findings, is not binding on the court, and where the question of the necessity of taking such site was not raised in either the pleadings or the evidence, a finding by the commissioners that the land proposed to be condemned was not necessary for the reservoir site was without force or effect. Mortensen v. Mortensen, 135 Colo. 167, 309 P.2d 197 (1957).

II. IMMEDIATE USE OF WATER.

This section confers the only authority for filling reservoirs. Water Supply & Storage Co. v. Tenney, 24 Colo. 344, 51 P. 505 (1897).

Water for storage in reservoirs can be used only when not needed for immediate domestic and irrigating use. Water Supply & Storage Co. v. Tenney, 24 Colo. 344, 51 P. 505 (1897).

It is scarcely conceivable that a district court would deliberately enter a decree giving to a reservoir owner any priority to fill his reservoir which would conflict with any right of a ditch owner to use water for irrigation, even though the priority of the latter was junior in time to the construction of the reservoir. Water Supply & Storage Co. v. Tenney, 24 Colo. 344, 51 P. 505 (1897).

Where the defendant asked the court to charge the jury, which the court refused to do, that when needed for immediate use in irrigating lands by others having such right, one might not divert water from a natural stream for storage purposes in a reservoir, the court held that if the facts of the case called for an instruction on the law of defense of property, then this instruction should also have been given, for there was evidence that plaintiff was storing water in a fish pond when defendant needed it for immediate use in watering his crops. Newby v. People, 28 Colo. 16, 62 P. 1035 (1900).

Where there were senior appropriators of all the available flow of a natural stream who needed it for immediate use for domestic and irrigating purposes during the irrigation season from about June 1 to November 1, of each calendar year, this section does not allow water to be diverted for storage in reservoirs during such period of time, hence the storage system of the plaintiff could be operated only during the nonirrigating season from November 1 of each year until June 1 of the next succeeding year, by reason of which the work of rebuilding plaintiff's ditch must be done, if at all, during that irrigating season. Aetna Cas. & Sur. Co. v. N. Sterling Irrigation Dist., 75 Colo. 185, 225 P. 261 (1924).

The construction of an irrigation ditch and the appropriation of water thereby to the irrigation of lands during the irrigation season, and a decree of priority for that purpose, give the appropriator no priority of right to water during the nonirrigating season for the purpose of storage for future use in a reservoir subsequently constructed. New Loveland & Greeley Irrigation & Land Co. v. Consol. Home Supply Ditch & Reservoir Co., 27 Colo. 525, 62 P. 366 (1900).

The fact that at the time of commencing the construction of an irrigation ditch it was the intention of the appropriator to also use it as a feeder to a reservoir to be constructed sometime in the future, in which to store the water during the nonirrigating season for future use, would give the appropriator no prior right to water for storage during the nonirrigating season to date from the commencement of the ditch, unless the construction of the reservoir was so closely connected with the construction of the ditch as to show them to be one system, and the work thereon was prosecuted to completion and water thereby appropriated to a beneficial use with reasonable diligence. New Loveland & Greeley Irrigation & Land Co. v. Consol. Home Supply Ditch & Reservoir Co., 27 Colo. 525, 62 P. 366 (1900).

The priority to the use of water for storage during the nonirrigating season depends upon the time of appropriation for that purpose, and an appropriator who first constructed his reservoir and appropriated water for that purpose is entitled to priority over a subsequent appropriator notwithstanding the subsequent storage appropriator was a prior appropriator for irrigation and supplied his reservoir through a ditch with prior rights for irrigation purposes. New Loveland & Greeley Irrigation & Land Co. v. Consol. Home Supply Ditch & Reservoir Co., 27 Colo. 525, 62 P. 366 (1900).

It is not unreasonable to suppose that the provisions of this section intended that an owner of a reservoir for irrigation purposes shall have the right to take and store unappropriated waters, and also waters that already have been appropriated by others but that are not at the time needed by such prior appropriators for immediate use for domestic or irrigation purposes, because such storage would save the water from going to waste, a most desirable object in this "dry and thirsty land", where every drop of water is sorely needed, and such a construction would save this section from coming into conflict with the constitution. People ex rel. Park Reservoir Co. v. Hinderlider, 98 Colo. 505, 57 P.2d 894 (1936) (concurring opinion).

III. COOPERATION BY STATE AGENCIES.

Where a third party held a 99-year lease on three reservoir sites that left the lessor, the state board of land commissioners, with no meaningful discretion to refuse to grant the third party a right of way for the reservoirs, it was impracticable for the state board of land commissioners to cooperate with an applicant for reservoir sites that significantly overlapped the third party's reservoirs. Even though the third party's lease was nonexclusive, the lessee had the right to control the stored water, which precluded the state board of land commissioners from granting the applicant a lease for the storage sites because doing so would unreasonably interfere with the lessee's rights. Although the lease allowed for the relocation of the reservoir sites, that right did not apply to a relocation for the benefit of a third party, nor for water development that did not benefit the particular parcel of land on which the reservoirs were located. In any event, it is not practicable to relocate an existing dam and reservoir. City of Aurora v. ACJ P'ship, 209 P.3d 1076 (Colo. 2009).