Colorado Supreme Court Justice Hobbs has written a series of Colorado Water Law updates, published in the University of Denver Water Law Review. The first article was published in Volume 1, Issue 1, in 1997. To provide our readers with the most up-to-date water law information, the editors have periodically updated works previously published in the Water Law Review. The following is an update to Colorado Water Law: An Historical Overview, Appendix – Colorado Water Law: A Synopsis of Statutes and Case Law.

 

Vance v. Wolfe

“While the term ‘beneficial use’ is undefined in the Colorado Constitution, the 1969 Act defines it broadly as ‘the use of that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made.’ Under the language of the 1969 Act, the CBM [Coalbed Methane] process ‘uses’ water – by extracting it from the ground and storing it in tanks – to ‘accomplish’ a particular ‘purpose’ – the release of methane gas. The extraction of water to facilitate CBM production is therefore a ‘beneficial use’ as defined in the 1969 Act.

Arguing against this interpretation, the Engineers and BP'[British Petroleum] assert that the use of the water during the CBM process cannot be a ‘beneficial’ one because the water is merely a nuisance. They stress that the goal of the CBM process is to capture the gas, not the water. The water, they continue, is simply an unwanted byproduct of the process. In sum, they question how the use of the water in this case can be termed ‘beneficial’ when they consider it to be a hindrance. . . . ‘[W]e disagree[.]

In fact, the presence of water and its subsequent extraction during CBM production is far more than an ‘inevitable result.’ Indeed, the presence and extraction of water are integral components to the entire CBM process. CBM producers rely on the presence of the water to hold the gas in place until the water can be removed and the gas captured. Without the presence and subsequent extraction of the water, CBM cannot be produced . . . While the Engineers and BP are correct that no Colorado case has specifically held that water used during CBM production is a beneficial use, this fact does not prevent us from finding such a beneficial use where our case law and the language of the 1969 Act so dictate.

As the water court noted, the Ranchers’ central concern is the protection of their vested senior water rights. We agree with the district court that our prior appropriation system exists to protect water rights holders. Here, the extraction, storage, and reinjection of water during CBM make the water inaccessible to other water rights holders such as the Ranchers. When the water is stored in surface tanks, a small quantity is lost to evaporation. At a later time, the water is typically reinjected, via underground injection control wells, into designated geologic formations that lie deeper than the aquifer from which the methane is produced. Consequently, ‘beneficial use’ also means use of water for a designated purpose – the result of which is to make the water inaccessible to other water rights holders.

We emphasize that determining the boundaries of ‘beneficial use’ requires careful case-by-case factual analysis and our holding today addresses the unique circumstances involved in CBM production. The definition of ‘beneficial use,’ however, is a ‘broad’ one, and we agree with the Ranchers that it is broad enough to cover the extraction of water to facilitate CBM production. In rendering our decision, we observe that the General Assembly may choose to make modifications to the statutes in light of our opinion.

In sum, while the production of oil and gas is subject to extensive regulation by COGCC [Colorado Oil and Gas Conservation Commission], it is also subject to the 1969 Act and the Ground Water Act. And, as noted above, we find that the extraction of water to facilitate CBM production is a beneficial use under those provisions.”

Vance v. Wolfe, 205 P.3d 1165, 1169 (2009) (case citations omitted).

Click here for a PDF of the entire article: 14 U. Denv. Water L. Rev. 159, 2010-2011

 

View the first article by Justice Hobbs here: 1 U. Denv. Water L. Rev. 1, 1997-1998.

View the first update to Colorado Water Law:  2 U. Denv. Water L. Rev. 223, 1998-1999.

View the second update to Colorado Water Law: 4 U. Denv. Water L. Rev. 111, 2000-2001.

View the third update to Colorado Water Law: 6 U. Denv. Water L. Rev. 116 2002-2003.

View the fourth update to Colorado Water Law: 8 U. Denv. Water L. Rev. 213, 2004-2005.

View the fifth update to Colorado Water Law: 10  U. D. Water L. Rev. 391, 2006-2007.

View the sixth update to Colorado Water Law: 13 U. Denv. Water L. Rev. 389, 2009-2010.


Colorado Supreme Court Justice Hobbs has written a series of Colorado Water Law updates, published in the University of Denver Water Law Review. The first article was published in Volume 1, Issue 1, in 1997. To provide our readers with the most up-to-date water law information, the editors have periodically updated works previously published in the Water Law Review. The following is an update to Colorado Water Law: An Historical Overview, Appendix – Colorado Water Law: A Synopsis of Statutes and Case Law.

 

In re Tonko.

“The remedies and procedures in a district court right-of-way condemnation proceeding are substantially different from those of a water court application proceeding. The condemnation action involves issues such as necessity and valuation in determining the compensation award for a ditch or pipeline right-of-way needed for water transport in the exercise of a water right. The prerequisite for maintaining the condemnation action, pursuant to section 7 of article XVI of the Colorado Constitution and section 37-86-104(1), C.R.S. (2006), is an adjudicated conditional or absolute water right, but the adjudication of such a right is not within the district court’s jurisdiction. Adjudication of water use rights belongs to the water court.

The water court process involves a division engineer’s consultation report, a referee’s investigation, discovery, and a trial regarding contested issues of fact involving claimed water use rights. A water court applicant has incentives and the opportunity to try water use questions that a condemnation proceeding lacks.

The existence or non-existence of the Tonkos’ water use rights by reason of the 1908 decree and coterminous conveyance by Picco and Milano to Delisa of a 2/7ths interest in the Tatman Ditch water rights is not identical to the condemnation of a ditch right-of-way issues the district court had before it. The Tonkos’ immediate predecessors-in-interest did not have the same incentive or opportunity to litigate water use matters in the condemnation proceeding as they are provided by statute in the water court.

We conclude that the Tonkos’ predecessors-in-interest did not have a full and fair opportunity to litigate their water use rights in the condemnation action. The fourth element of issue preclusion is not satisfied.

The Tonkos argue that irrigation of their land is within the 1908 decree and that an undecreed invalid enlargement has not occurred in regard to the Delisa interest in the Tatman Ditch water rights. The Tonkos have asserted facts in support of this contention that are properly triable in the water court, not the district court.

Whether Mallow lawfully extinguished the Delisa Ditch right-of-way across his land and whether the Tonkos proceed with a condemnation action turn on the outcome of their change of water rights application. Because the Tonkos’ application to confirm their water use rights comes within the exclusive jurisdiction of the water court, it must be allowed to proceed.”

In re Tonko, 154 P.3d 397, 407 (Colo. 2007) (case citations omitted).

Click here for a PDF of the entire article: 13 U. Denv. Water L. Rev. 389, 2009-2010.

 

View the first article by Justice Hobbs here: 1 U. Denv. Water L. Rev. 1, 1997-1998.

View the first update to Colorado Water Law:  2 U. Denv. Water L. Rev. 223, 1998-1999.

View the second update to Colorado Water Law: 4 U. Denv. Water L. Rev. 111, 2000-2001.

View the third update to Colorado Water Law: 6 U. Denv. Water L. Rev. 116 2002-2003.

View the fourth update to Colorado Water Law: 8 U. Denv. Water L. Rev. 213, 2004-2005.

View the fifth update to Colorado Water Law: 10  U. D. Water L. Rev. 391, 2006-2007.


Colorado Supreme Court Justice Hobbs has written a series of Colorado Water Law updates, published in the University of Denver Water Law Review. The first article was published in Volume 1, Issue 1, in 1997. To provide our readers with the most up-to-date water law information, the editors have periodically updated works previously published in the Water Law Review. The following is an update to Colorado Water Law: An Historical Overview, Appendix – Colorado Water Law: A Synopsis of Statutes and Case Law.

 

Fort Morgan Reservoir and Irrigation Co. v. Groundwater Appropriators of the South Platte River Basin, Inc.

“At the point at which a water rights case ceases to be a dispute handled informally by a water referee, and becomes litigation involving pre-trial discovery, sworn live testimony, and expert witnesses, it rests within the sound discretion of the trial court to determine whether, at the trial’s conclusion, there is a prevailing party entitled to costs. Since there is no statute or rule prohibiting the award of costs, and the unique nature of water right proceedings does not preclude the applicability of Rule 54(d), the award of costs necessarily rests in the sound discretion of the water court.” Fort Morgan Reservoir and Irrigation Co. v. Groundwater Appropriators of the South Platte River Basin, Inc., 85 P.3d 536, 541 (Colo. 2004).

United States of America v. Colorado State Engineer.

“The McCarran Amendment does not assert or imply that a state court would have jurisdiction to review the decision making process of federal entities, such as Interior or the Park Service, for compliance with federal law.

Indeed, such a conclusion would run contrary to the Administrative Procedure Act, the federal statute which establishes the practices and procedures followed by administrative agencies in rulemaking and adjudication. The language and legislative history of the APA’s judicial review provisions make clear that Congress intended to hold federal administrative agencies answerable for their conduct only in federal courts. 5 U.S.C. §§ 702, 706 (2004). Section 706 provides that a reviewing court shall ‘compel agency action unlawfully withheld or unreasonably delayed.’ 5 U.S.C. § 706(1). Section 702 defines the scope of that review: ‘A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute’ is entitled to judicial review and may bring suit against the agency. 5 U.S.C. § 702. However, the suit must be brought ‘in a court of the United States.’ Id. Thus, the waiver of sovereign immunity is expressly limited to federal court. The APA’s legislative history underscores this intent, explicitly stating that the United States will remain immune from suit in state courts.

Click here for a PDF of the entire article: 10 U. Denv. Water L. Rev. 391, 2006-2007.

 

View the first article by Justice Hobbs here: 1 U. Denv. Water L. Rev. 1, 1997-1998.

View the first update to Colorado Water Law:  2 U. Denv. Water L. Rev. 223, 1998-1999.

View the second update to Colorado Water Law: 4 U. Denv. Water L. Rev. 111, 2000-2001.

View the third update to Colorado Water Law: 6 U. Denv. Water L. Rev. 116 2002-2003.

View the fourth update to Colorado Water Law: 8 U. Denv. Water L. Rev. 213, 2004-2005.


Colorado Supreme Court Justice Hobbs has written a series of Colorado Water Law updates, published in the University of Denver Water Law Review. The first article was published in Volume 1, Issue 1, in 1997. To provide our readers with the most up-to-date water law information, the editors have periodically updated works previously published in the Water Law Review. The following is an update to Colorado Water Law: An Historical Overview, Appendix – Colorado Water Law: A Synopsis of Statutes and Case Law and was published in the Water Law Review, Volume 6 in 2001. 

 

Simpson v. Bijou Irrigation Co.

“As a result of the [1969] Act’s stated policy of conjunctive use, wells were required to be integrated into the priority system, although unadjudicated wells in existence prior to 1969 were allowed to continue. The Act nevertheless encouraged the adjudication of existing wells by allowing well owners who filed an application by July 1, 1971, to receive a water decree with a priority dating back to their original appropriation date. The 1969 Act also introduced the concept of augmentation plans into the water law adjudication and administration scheme. Augmentation plans were the primary means provided by the Act for integrating groundwater into the state priority system…. ”  Simpson v. Bijou Irrigation Co., 69 P.3d 50, 60 (Colo. 2003) (citations and footnotes omitted).

“In response to the large number of augmentation plan applications which had been filed, in 1974 the General Assembly vested the State Engineer with the authority to grant temporary approval of augmentation plans. Significantly, however, a precondition to even temporary approval by the State Engineer was that the water user had an augmentation plan application pending in water court.

Click here for a PDF of the entire article: 8 U. Denv. Water L. Rev. 213, 2004-2005.

 

View the first article by Justice Hobbs here: 1 U. Denv. Water L. Rev. 1, 1997-1998.

View the first update to Colorado Water Law:  2 U. Denv. Water L. Rev. 223, 1998-1999.

View the second update to Colorado Water Law: 4 U. Denv. Water L. Rev. 111, 2000-2001.

View the third update to Colorado Water Law: 6 U. Denv. Water L. Rev. 116 2002-2003.


Colorado Supreme Court Justice Hobbs has written a series of Colorado Water Law updates, published in the University of Denver Water Law Review. The first article was published in Volume 1, Issue 1, in 1997. To provide our readers with the most up-to-date water law information, the editors have periodically updated works previously published in the Water Law Review. The following is an update to Colorado Water Law: An Historical Overview, Appendix – Colorado Water Law: A Synopsis of Statutes and Case Law and was published in the Water Law Review, Volume 6 in 2001. 

Park County Water Pres. Coalition v. Columbine Assoc.

“Subject-matter jurisdiction concerns ‘the court’s authority to deal with the class of cases in which it renders judgment.’. . . [W]e have held that subject-matter jurisdiction vests in the water court upon the timely filing of the application and publication of the resume notice.” Park County Water Pres. Coalition v. Columbine Assoc., 993 P.2d 483, 488 (Colo. 2002) (citations omitted).

“The reasonableness of the notice is determined by applying an inquiry standard-whether the notice is sufficient to reveal to potential parties the nature of the claim being made, so that such parties can determine whether to conduct further inquiry into the full extent of those claims so a determination can be made whether to participate in the proceedings.” Id. at 489-90 (citation omitted).

“‘Consequently, alleged deficiencies invalidate the resume only if the resume taken as a whole is insufficient to inform or put the reader on inquiry of the nature, scope, and impact of the proposed diversion.”‘ Id. at 490 (citation omitted).

 

Click here for a PDF of the entire article: 6 U. Denv. Water L. Rev. 116 2002-2003.

 

View the first article by Justice Hobbs here: 1 U. Denv. Water L. Rev. 1 1997-1998.

View the first update to Colorado Water Law:  2 U. Denv. Water L. Rev. 223, 1998-1999.

View the second update to Colorado Water Law: 4 U. Denv. Water L. Rev. 111 2000-2001.


Colorado Supreme Court Justice Hobbs has written a series of Colorado Water Law updates, published in the University of Denver Water Law Review. The first article was published in Volume 1, Issue 1, in 1997. To provide our readers with the most up-to-date water law information, the editors have periodically updated works previously published in the Water Law Review. The following is the second update to Colorado Water Law: An Historical Overview, Appendix – Colorado Water Law: A Synopsis of Statutes and Case Law and was published in the Water Law Review, Volume 4 in 2001. 

Farmers High Line Canal & Reservoir Co. v. City of Golden

“[P]rior to the modern trend of implementing express volumetric limitations in decrees, most water rights were quantified by a two-part measurement. First, a decree contained a flow-rate of water, in c.f.s., which the owner was entitled to divert from the stream. Second, a decree stated the use to which that diverted water could be put, such as irrigation of crops or municipal uses.” Farmers High Line Canal & Reservoir Co. v. City of Golden, 975 P.2d 189, 197 (Colo. 1999).

“From the late 1800s to the early 1970s, courts primarily employed one standard method in order to protect the vested rights of juniors in change proceedings. Under this method, the court would order the petitioner to abandon a portion of his or her originally decreed flow right back to the stream. This flow abandonment was then incorporated into the express terms of the change decree.” Id. at 197-98.

“With the advent of improved engineering techniques, courts began to utilize another approach to prevent injury to juniors in change proceedings. Under the modern method, courts now translate the petitioner’s historical consumptive use into a volumetric limitation stated in acre-feet. Courts then incorporate the volume limit into the express terms of the decree. Therefore, most modern change decrees impose an acre-foot limit on the amount of water an appropriator may consume in the average year.

This shift in the methods employed to protect juniors in change proceedings accounts for the difference between Golden’s decrees, granted in the early 1960s, and Con Mutual’s change decree, granted in 1993. Whereas the 60s decrees only required Golden to abandon a portion of its flow entitlement in order to protect junior users, Con Mutual’s decree imposed a volumetric limit on the amount of Priority 12 water it is entitled to consume.” Id. at 198.

 

Click here for a PDF of the entire article: 4 U. Denv. Water L. Rev. 111 2000-2001.

 

View the first article by Justice Hobbs here: 1 U. Denv. Water L. Rev. 1 1997-1998.

View the first update to Colorado Water Law: An Historical Overview 2 U. Denv. Water L. Rev. 223, 1998-1999.


Colorado Supreme Court Justice Hobbs has written a series of Colorado Water Law updates, published in the University of Denver Water Law Review. The first article was published in Volume 1, Issue 1, in 1997. To provide our readers with the most up-to-date water law information, the editors have periodically updated works previously published in the Water Law Review. The following is an update to Colorado Water Law: An Historical Overview, Appendix – Colorado Water Law: A Synopsis of Statutes and Case Law and was published in the Water Law Review, Volume 2 in 1998. 

Chatfield East Well Company, Ltd. v. Chatfield East Property Owners Ass’n

“Waters of the natural stream, including tributary ground water, belong to the public and are subject to use under Colorado’s constitutional prior appropriation doctrine and implementing statutes. Rights of use thereto become perfected property rights upon application to beneficial use. In contrast, the right to use water in designated ground water basins, nontributary water outside of designated ground water basins, or any Dawson, Denver, Arapahoe, or Laramie-Fox Hills ground water outside of a designated ground water basin, is governed by the provisions of the Groundwater Management Act. Ground water located in designated basins is subject to a modified system of prior appropriation administered by the ground water commission. Use of nontributary ground water and Denver Basin aquifer water outside of designated ground water basins is subject to the provisions of section 37-90-137(4). Regardless of whether water rights are obtained in accordance with prior appropriation law, or pursuant to the Ground Water Management Act, no person “owns” Colorado’s public water resource as a result of land ownership.”

Click here for a PDF of the entire article: 2 U. Denv. Water L. Rev. 223, 1998-1999.

View the first article by Justice Hobbs here. 


Colorado Supreme Court Justice Hobbs has written a series of Colorado Water Law updates, published in the University of Denver Water Law Review. This article and the Appendix- Colorado Water Law: A Synopsis of Statutes and Case Law was published in Volume 1, Issue 1, in 1997.

Colorado Water Law: An Historical Overview

INTRODUCTION

Rivers, plains, and mountains make us Coloradans. Residing on one of two sides of this Continent’s backbone, some of us, look to the West to the Great Divide, others to the East. When our hearts follow our eyes, when we think about this magnificent land and our fellow

Coloradans on the other side, we truly gain the power of this rivered place. Thomas Hornsby Ferril called on us-his fellow Coloradans-to remember and to live our origins: strength of mountain stream, hope of prairie stream.

Beneficial use and preservation are two primary public policies which guide western natural resource law; they are the two chambers of our western heart, the two lobes of our brain. Colorado water law establishes the right of water appropriation to serve public and private needs. New uses and changes in existing water rights continue to exist and evolve within the framework of the water law. The preservation interests are addressed primarily by state and federal land use law and environmental regulatory law, such as is evidenced by the acquisition of open space and parks by public entities, as well as federal land reservations for national parks, monuments, wilderness areas, and wildlife preserves.

Western prior appropriation water law is a property rights-based allocation and administration system, which promotes multiple use of a finite resource. The fundamental characteristics of this system guarantee security, assure reliability, and cultivate flexibility. Security resides in the system’s ability to identify and obtain protection for the right of use. Reliability springs from the system’s assurance that the right of use will continue to be recognized and enforced over time. Flexibility emanates from the fact that the right of use can be transferred to another, subject to the requirement that other appropriators not be injured by the change.

Click here for a PDF of the entire article: 1 U. Denv. Water L. Rev. 1 1997-1998.