Colorado Water Law: An Historical Overview, Update 2

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.