Colorado § 37-87-102 - Definitions - natural streams and use thereof by reservoir owners.

§ 37-87-102. Definitions - natural streams and use thereof by reservoir owners.

(1) As used in this article, unless the context otherwise requires:

(a) "Mean annual flood" means a flood which has a magnitude (peak discharge) which is expected to be equaled or exceeded on the average once every 2.33 years and has a forty-three percent chance of being equaled or exceeded (0.43 exceedance probability) during any year, by application of the criteria defined in subsection (2) of this section.

(b) "Natural stream" means a place on the surface of the earth where water naturally flows regularly or intermittently with a perceptible current between observable banks, although the location of such banks may vary under different conditions.

(c) "One-hundred-year flood" means a flood which has a magnitude (peak discharge) which is expected to be equaled or exceeded on the average once during any one-hundred-year period (recurrence interval) and has a one percent chance of being equaled or exceeded during any year (0.01 exceedance probability). The terms "one-hundred-year flood", "one percent chance flood", and "intermediate regional flood" are synonymous.

(d) "One-hundred-year floodplain" means that area in and adjacent to a natural stream which is subject to flooding as a result of the occurrence of a one-hundred-year flood.

(e) "Ordinary high watermark" of any stream means the visible channel of a natural watercourse within which water flows with sufficient frequency so as to preclude the erection or maintenance of man-made improvements without special provision for protection against flows of water in such channel or the channel defined by the mean annual flood, whichever is greater.

(2) Whenever the records basic to a determination of probable future water flows, either with respect to this section or by other requirements of law, extend for a period of one hundred or more years, the calculation based upon those results shall be deemed conclusive. If such records do not extend for a period of one hundred or more years the determination shall be made by interpolation and correlation to a full one hundred years of records by relating them to known records of water basins as similar as reasonably possible to the basin under consideration or by other acceptable methods.

(3) (a) In any case in which a determination of probable future surface water flows at any place in the state is required, the calculation shall be based upon past surface water runoff at the place in question supplemented as provided in this section. Such probable flows shall be determined by reference to the records of reliable stream gauging stations. A stream gauging station record shall be deemed reliable if made by the state of Colorado or the United States as part of a regular program of either of those entities, except as to any part of such records which the state engineer shall have designated as being unreliable, on the basis of facts so showing. Whenever a designation of probable future runoff is required at a place other than the location of a reliable stream gauging station, the determination of probable runoff at such other place shall be made by relating the probable future runoff at that place to the recorded runoff at a comparable gauging station or gauging stations by the interpolation of reasonable hydrologic, geologic, and natural vegetative factors supplemented as provided in this section. Unless clearly unrelated, the factors of the comparison shall include, but not be limited to, the following elements or characteristics:

(I) The water basin contributing to the probable future flow at the place where probable future runoff is to be determined, considering:

(A) The size;

(B) The altitude or altitudes;

(C) The various soil permeabilities;

(D) The various vegetative covers;

(II) The known runoff as determined by reliable stream gauging stations using interpolations when necessary from comparable gauging stations and relating interpolations to the characteristics of the basin measured by the comparable gauging stations as related to the basin of runoff being determined;

(III) The slope or slopes of the terrain whose surface runoff contributes to the surface water flows at the place at which a determination of probable future surface water flows is required.

(b) The state engineer shall promulgate rules pursuant to section 24-4-103, C.R.S., which include other factors for consideration in any area or situation in which calculations based on the criteria in paragraph (a) of this subsection (3) will probably be made more accurate by use of other or additional criteria. Whenever conditions are such that records of past precipitation are an appropriate factor, he may designate any portion of official precipitation records of agencies of the United States or of the state of Colorado which are appropriate in evaluating probable future water flows. He may approve use of factors referred to in this paragraph (b) with respect to particular areas or design of specific structures when requested to do so.

(c) No dam safety requirement shall be imposed to meet a potential hazard of a flood whose magnitude is such that the hazard would probably exist whether or not the dam failed.

(3.5) Whenever a determination of probable future surface water flows, or the probability of frequency of their recurrence, at any place in Colorado is required by relation to a longer period of flow than that for which there is a reliable record of flow as defined in subsection (3) of this section, the determination shall be made by interpolation and correlation of known records to the longer period by relating known records of water basins as similar as reasonably possible to the place of determination or basin under consideration, or by use of geologic determinations, or by use of other methods reasonably calculated to formulate an accurate estimate of probable future flows or the probability of frequency of their recurrence at the place of determination of such flows.

(3.7) Calculations of probable flows or frequency of recurrence based upon application of the principles set forth in subsections (3) and (3.5) of this section shall relieve anyone acting in accordance with such principles of any liability respecting an occurrence different than that predicted. This exemption from liability shall apply to the state and its public officials or employees when acting in performance of their public duties.

(4) The owners of any reservoir may conduct the waters legally stored therein into and along any of the natural streams of the state, but not so as to raise the waters thereof above ordinary high watermark, and may take the same out again at any point desired if no material injury results to the prior or subsequent rights of others to other waters in said natural streams. Due allowance shall be made for evaporation and other losses from natural causes for the protection of all rights to the waters flowing in said streams, such losses to be determined by the state engineer.

Source: L. 1879: p. 107, § 39. G.S. § 1725. R.S. 08: § 3203. C.L. § 1683. L. 35: p. 638, § 1. CSA: C. 90, § 80. CRS 53: § 147-5-2. C.R.S. 1963: § 148-5-2. L. 84: Entire section amended, p. 961, § 2, effective April 30. L. 86: (2) and (3) R&RE and (3.5) and (3.7) added, pp. 1088, 1089, §§ 1, 2, effective April 4.

ANNOTATION

Law reviews. 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, "Municipal Partnerships for Instream Flow on Colorado's Front Range", see 55 Colo. Law. 48 (Jan.-Feb. 2026).

This section providing that the owners of reservoirs may conduct the water from the reservoirs into and along any of the natural streams of the state, emphasizes the doctrine that these are public streams. Hartman v. Tresise, 36 Colo. 146, 84 P. 685 (1906).

In some circumstances, dams, ditches, canals, and tunnels, taken together, may be considered as a reservoir within the meaning of this section. Twin Lakes Reservoir & Canal Co. v. Sill, 104 Colo. 215, 89 P.2d 1012 (1939).

This section should be so construed as to include inlets to, as well as outlets from, reservoirs in connection with natural streams, whereby the latter are used to carry abnormal amounts due to delivery therein of privately owned water. Twin Lakes Reservoir & Canal Co. v. Sill, 104 Colo. 215, 89 P.2d 1012 (1939).