Concerning the Application for Water Rights of Tidd: Frees v. Tidd

2015 CO 39, 349 P.3d 259, 2015 Colo. LEXIS 462, 2015 WL 3452534

• Court: Supreme Court of Colorado
• Decided: June 1, 2015
• Docket: Supreme Court Case 14SA234
• Status: Published

Opinions

JUSTICE HOBBS

delivered the Opinion of the Court

11 This water case involving neighboring property owners in Saguache County presents an issue of first impression: -May the land owner whose property is burdened by an easement across his or her property for a water ditch obtain a junior conditional water right at the headgate of that ditch for non-consumptive hydropower use of water that the neighbor is diverting from the stream under a senior water right for irrigation use through that headgate? ¹

T2 Applying the no material injury, water availability, and maximum beneficial use principles of Colorado water law, in conjunction with our decision in Roaring Fork Club, L.P. v. St. Jude's Co., 36 P.3d 1229 (Colo.2001), regarding dominant and servient interests in property burdened by a water ditch, the District Court for Water Division No. 3 issued a declaratory judgment and a conditional water right decree in the amount of 0.41 cubic feet per second ("efs") with a 2010 priority for hydropower use to Charles and Barbara Tidd (the "Tidds") for diversion from Garner Creek in Saguache County at the headgate of Garner Creek Ditch No. 1.

13 The Plaintiffs-Appellants, David L. Frees, George A. Frees, Delmer E. Frees, and Shirley A. Frees (the "Frees"), assert that the water court lacked authority to decree this water right over their objection. They base this objection upon their ownership of a water right with an 1890 priority that diverts up to 64 cfs of water from Garner Creek at the headgate of Garner Creek Ditch No. 1 for irrigation use on the Frees' property.

4 The Frees own an easement across the Tidds' property for delivery of the water diverted under their 1890 water right to the Frees' land. The Frees contend that Colorado water law prevents any other person from appropriating the "same physical water as the Opposers have already appropriated through Garner Creek Ditch No. 1," despite the fact that all parties concede that the decree issued by the water court contains sufficient conditions preventing injury to the Frees water and ditch rights. The Tidds reply that they are not appropriating the Frees' 1890 water right; instead they "will use their own separate junior water right with a 2010 priority, using Garner Creek as its source and Garner Creek Ditch No. 1 ... as the physical delivery to their hydropower plant." The Tidds acknowledge that, at times, they will use the same "physical water after it is diverted from the natural stream into the Ditch" and they will "use a portion of the same physical Ditch, in common with Opposers." They also point out that, at other times when the Frees are not diverting and there is sufficient water in Garner Creek for exercise of their 2010 hydropower right, the Tidds' water right will operate independently of the Frees' diversion. Section 37-86-105, C.R.S. (2014), provides that no parcel of land shall be subjected to the burden of two or more water ditches through that property when one ditch will suffice.

15 The water court found that water is available for the Tidds' non-consumptive hy-dropower use, and the Frees cannot exclude them from that use because the Frees do not own the physical water they divert from Garner Creek. Instead they "only own the right to use that water for irrigation purposes." The water court applied our St. Jude's precedent to enter a declaratory judgment and decree resolving differences between these dominant and servient land owner interests. It found that the Tidds

have the right to use and make necessary alterations to the Garner Creek Ditch No. 1 to allow them to divert water from it for hydropower purposes so long as such use and alteration does not interfere with the quantity, quality, or timing of the water to be delivered to the Opposers under their prior water rights.

16 The water court's decree contains detailed conditions applicable to the construction, operation, and maintenance of the hy-dropower facility and the measurement of flows through that facility and the ditch nee-essary to prevent injury to the Frees' water and ditch rights. The decree states: "This decree is for non-consumptive use. Therefore, Applicants must cease use of the project if the measurements set forth above demonstrate that any water is consumed, or Applicants must augment any and all depletions through the delivery of replacement water." In this appeal, the Frees contest only the authority of the water court to enter a decree allowing the Tidds to run a portion of the Garner Creek water diverted at the Garner Creek Ditch No. 1 headgate through the Tidds' hydropower facility.

T1 7 We defer to the water court's findings of fact and uphold its conclusions of law. Under the circumstances of this case, we hold that the water court did not err in issuing a conditional decree for a non-consumptive hydropower use water right with a 2010 priority for 0.41 efs diverted from Garner Creek through the headgate of Garner Creek Ditch No. 1.

I.

T8 The Tidds own approximately eighty acres of land in Saguache County,² located in the San Luis Valley of central-southern Colorado and rich in agricultural history. The Frees own an easement for Garner Creek Ditch No. 1, which runs across the northern end of the Tidds' property. The Frees use the ditch to convey their 6.4 efs irrigation water right with a priority date of 1890. Except during occasional high water conditions, this water right diverts the entire flow of Garner Creek from the Garner Creek Ditch No. 1 headgate during the irrigation season.

T 9 On November 15, 2010, the Tidds filed an application seeking a 0.41 efs conditional water right for non-consumptive hydropower use. On January 24, 2011, the Frees filed a Statement of Opposition to the proposed conditional water right. Initially, the Tidds listed the point of diversion for the hydropower right as Garner Creek Ditch No. 1, but they amended their application on June 10, 2011, to identify Garner Creek as the source of the appropriation, with the point of diversion as the headgate for the Garner Creek Ditch No. 1. To effectuate their conditional use, the Tidds will have to construct additional infrastructure in order to pipe 0.41 efs of water from the ditch a maximum distance of 1,222 feet downhill and pass it through a flywheel connected to an alternator on the Tidds' property to generate a maximum of 8.48 kW of electricity. The entire 0.41 efs will be returned via a discharge pipe to the ditch before the place of use of the Frees' water right.

10 During the pendency of their application, the Tidds filed a motion seeking a declaratory judgment on a question of law pursuant to C.R.C.P. 57. Specifically, the Tidds asked the water court to decide "[wJhether, and under what conditions, Applicants have a right to use a ditch on their property for hydropower purposes, despite the objection of the ditch owners." In its order, the water court characterized the question as "whether there is water available for the Applicants to appropriate at the Garner Creek Ditch No. 1 head-gate." After observing that the amended application identifies a point of diversion on Garner Creek and noting Colorado's pub-lie policy in favor of maximizing the use of a limited water supply while protecting decreed water rights, the water court found and determined that water is available at the Garner Creek Ditch No. 1 headgate for appropriation by the Tidds for their non-consumptive hydropower use. The parties subsequently crafted terms and conditions for the decree to ensure that the Tidds' 2010 appropriation will not injure the Frees' water right. On June 16, 2014, the water court entered the decree in this case, Case No. 10CW31, adopting the Findings and Ruling of the Referee, and granting the Tidds a conditional water right in the amount of 0.41 cfs from Garner Creek with the point of diversion at the Garner Creek Ditch No. 1 headgate, for non-consumptive hydropower use with a priority date of November 14, 2010. This appeal followed.

H.

1 11 We defer to the water court's findings of fact and uphold its conclusions of law. Under the cireumstances of this case, we hold that the water court did not err in issuing a conditional decree for a non-consumptive hydropower use water right with a 2010 priority for 0.41 efs diverted from Garner Creek through the headgate of Garner Creek Ditch No. 1.

A. Standard of Review

T12 Whether an applicant has met the legal standards for a conditional appropriation presents mixed questions of fact and law we review de novo. Buffalo Park Dev. Co. v. Mountain Mut. Reservoir Co., 195 P.3d 674, 685 (Colo.2008). We defer to the water court's findings of fact unless the evidence is wholly insufficient to support those determinations. Id.

B. Applicable Law

{13 In Colorado, waters of the natural stream, including tributary groundwater, belong to the public subject to appropriation through actual beneficial use. Colo. Const. art. XVI, §§ 5, 6. Colorado's long-established policy seeks to maximize the beneficial use of waters of the state. § 37-92-102(1)(a), C.R.S. (2014); Fellhauer v. People, 167 Colo. 320, 447 P.2d 986, 994 (1968) (noting that it is implicit in the Colorado Constitution that "there shall be Maximum utilization of the water of this state"); High Plains A & M, LLC v. Se. Colo. Water Conservancy Dist., 120 P.3d 710, 718-19 (Colo.2005) ("The 'Colorado Doctrine' ... promotes multiple use of a finite resource for beneficial purposes."). To this end, Colorado strives to distribute its searee water resources "in ways that respect historical uses without thwarting growth or entrepreneurial development." Mount Emmons Mining Co. v. Town of Crested Butte, 40 P.3d 1255, 1257 (Colo.2002); see also Empire Lodge Homeowners' Ass'n v. Moyer, 39 P.3d 1139, 1147 (Colo.2001) ("The objective of the water law system is to guarantee security, assure reliability, and cultivate flexibility in the public and private use of this scarce and valuable resource.").

114 A water right is a right to use in accordance with its priority a certain portion of the waters of the state by reason of the appropriation of the same. § 37-92-103(12), C.R.S. (2014). A water right comes into existence through the application of water to the appropriator's beneficial use. Santa Fe Trail Ranches Prop. Owners Ass'n v. Simpson, 990 P.2d 46, 53 (Colo.1999). A water right is a usufructuary right; "one does not 'own' water but owns the right to use water within the limitations of the prior appropriation doctrine." Kobobel v. Colo. Dep't. of Natural Res., 249 P.3d 1127, 1134 (Colo.2011). Under Colorado's prior appropriation system, water users can obtain a court decree verifying their water right. See Empire Lodge, 39 P.3d at 1148 ("Appropriation of natural stream waters is subject to administration in priority in accordance with judicial decrees determining the existence of water rights."). An important aspect of a water court's task is to assure the maximum beneficial use of water while adequately protecting against injury to vested water rights. City of Thornton v. Bijou Irrigation Co., 926 P.2d 1, 86 (Colo.1996).

115 A conditional water right is an unperfected water right that has not yet ripened. Natural Energy Res. Co. v. Upper Gunnison River Water Conservancy Dist., 142 P.3d 1265, 1277 (Colo.2006); see also Empire Lodge, 39 P.3d at 1147 ("[A] conditional water right holds a place in the priority system to which the water right antedates in the event the appropriator places the unappropriated water to beneficial use."). Conditional water rights encourage the pursuit of projects designed to place waters of the state to beneficial uses by reserving an antedated priority, in light of the necessity to obtain and complete financing, engineering, and the construction of works that will capture, possess, or otherwise control the water. Dallas Creek Water Co. v. Huey, 933 P.2d 27, 35 (Colo.1997). To obtain a conditional water right, an applicant must make a threshold showing that water is available for the proposed appropriation. Bd. of Cnty. Comm'rs v. United States, 891 P.2d 952, 962 (Colo.1995).

116 Colorado is a prior appropriation state that has abolished the riparian doctrine. Coffin v. Left Hand Ditch Co., 6 Colo. 443, 447 (1882). As early as the first territorial legislature, our laws recognized the right to appropriate water from the natural streams and convey it across the land of another, so that lands not immediately proximate to a stream could be developed. Colorado Territorial Laws 67 § 2 (1861). Our constitution embodied that right in article XVI, section 7, which provides:

All persons and corporations shall have the right-of-way across public, private and corporate lands for the construction of ditches, canals and flumes for the purpose of conveying water for domestic purposes, for the irrigation of agricultural lands, and for mining and manufacturing purposes, and for drainage, upon payment of just compensation.

Our court first stressed the importance of ditch right-of-ways in Yunker v. Nichols, 1 Colo. 551, 555 (1872) (holding that "all lands are held in subordination to the dominant right of others, who must necessarily pass over them to obtain a supply of water"). Section 37-86-102, C.R.S. (2014), likewise authorizes the use of ditch right-of-ways:

Any person owning a water right or conditional water right shall be entitled to a right-of-way through the lands which lie between the point of diversion and point of use or proposed use for the purpose of transporting water for beneficial use in accordance with said water right or conditional water right.

Section 87-86-105 provides that "[nlo tract or parcel of improved or occupied land ... shall be subjected to the burden of two or more ditches ... when the same object can feasibly and practicably be attained by uniting and conveying all the water necessary to be conveyed through such property through one ditch or other structure." Section 37-92-305(2), C.R.S. (2014), states that two different water rights may share a common point of diversion.

C. Application to This Case

{17 As an initial matter, we determine that the Tidds properly obtained a court declaration and decree of no material injury before making alterations to a ditch easement located on their property. To apply the water decreed for their hydropower use, the Tidds must first make several alterations to the ditch. In Roaring Fork Club, L.P. v. St. Jude's Co., we held that the owner of property burdened by a ditch easement has no right to alter an easement without the consent of the benefitted owner unless he or she first obtains a declaration by a court that such alterations will cause no damage to the benefitted owner. 36 P.3d at 1239. The Frees own an easement across the Tidds' property for the ditch, and therefore the Tidds were required to show that their proposed alterations to the ditch would not injure the Frees vested property rights. Here, the water court made a factual finding that the terms and conditions of the decree are sufficient to mitigate any injury to the Frees' water right and right-of-way property interests, and the water court retained continuing jurisdiction for reconsideration of the question of injury to the Frees' water and ditch rights. The water court's findings of fact are supported by. the record. Accordingly, the Tidds complied with our directions in St. Jude's to obtain a declaration of the court before altering the rights associated with the ditch easement located on their property.

118 In this case, the Tidds do not attempt to appropriate the Frees' water right nor change the Frees' water right to allow the Tidds to add a use to the senior right. Instead, the Tidds applied for, and received, a conditional water right to appropriate water from Garner Creek at the ditch headgate for hydropower use. Indeed, the Tidds cannot seek to make changes to the Frees' water right-only the owner of a decreed water right may seek changes to that decree. E. Cherry Creek Valley Water & Samitation Dist. v. Greeley Irrigation Co., 2015 CO 30, ¶ 16, 348 P.3d 434; Bd. of Cnty. Comm'rs v. Upper Gunnison River Water Conservancy Dist., 838 P.2d 840, 855 (Colo.1992). Despite the Frees' characterization of the Tidds' application, the Tidds clearly did not seek to add a new use to or change the Frees' water right. Adding a new use to or changing an existing right through a change decree maintains the original priority date. See Colo. Water Conservation Bd. v. City of Central, 125 P.3d 424, 435 (Colo.2005). Here, the Tidds sought and received a conditional water right with a priority date of 2010, a significantly junior date compared to the Frees' senior 1890 priority date for their water right. Although the Tidds intend to use the same point of diversion on Garner Creek, and some of the same physical water as the Frees, this is not merely permissible, Colorado water law favors such multiple uses if injury to senior water rights will not occur. See Nichols v. McIntosh, 19 Colo. 22, 34 P. 278, 279 (1893) (observing that the same "ditch may have two or more priorities belonging to the same party or to different parties").

{19 We conclude the water court did not err in decreeing the non-consumptive, noninjurious, hydropower conditional water right the Tidds sought in this case; it is legally separate and distinct from the Frees' irrigation water right. The Frees argue to the contrary that the effect of the decree is to allow the Tidds to appropriate the Freeg' water. For this proposition, the Frees rely on the Tenth Cireuit Court of Appeals' decision in Public Service Co. of Colorado v. Federal Emergy Regulatory Commission, 754 F.2d 1555 (10th Cir.1985). They contend this case stands for the proposition that, once the Frees divert water from the stream to the ditch, this water has a "label" on it and cannot ever be used by others before it is applied to the Frees' beneficial use. However, that federal case is not only distinguishable, it contains self-contradietory characterizations of Colorado water law.

120 That case involved Public Service Company of Colorado's ("PSC") run of the river hydropower facility, the Shoshone Plant, on the Colorado River with an adjudicated water right of 1250 efs and a priority date of January 7, 1902. Id. at 1558. Up river, the U.S. Bureau of Reclamation operates the Green Mountain Dam and Reservoir on the Blue River, a tributary of the Colorado River, with a direct flow water right of 1726 cfs and a storage water right of 154,645 acre-feet, both with a priority date of August 1, 1935. Id. at 1558, 1561. The dam and reservoir are located approximately eight miles above the confluence of the Blue and Colorado Rivers, about 100 miles upstream from the Shoshone Plant. Id. at 1558. When the U.S. Bureau of Reclamation releases stored water from the reservoir, it directly benefits PSC's hydropower facility by providing additional flow PSC would otherwise not enjoy under normal stream conditions. Id. at 1565. The Tenth Circuit held that, because PSC benefits from use of the water the United States stores and releases from Green Mountain Reservoir, the Federal Energy Regulatory Commission ("FERC") can charge PSC a "headwater benefits" fee pursuant to the Federal Power Act, 16 U.S.C. § 808(f) (1982), without running afoul of the takings doctrine. Id. at 1568-65.

21 In the opinion, the court problematically stated in dicta that the storage water has a "'label' on it and is no longer public property." Id. at 1565. The Frees cite this language to support their assertion that water they divert at the Garner Creek Ditch No. 1 headgate "has a label on it" and therefore cannot be used by the Tidds for any purpose. However, contrary to the Frees' interpretation of this case, we understand the Tenth Circuit's decision to hold that PSC's non-consumptive use of the Green Mountain storage water through its hydroelectric facility was a sufficient basis for FERC's assessment of the headwaters benefit charge. Accordingly, Public Service Co. of Colorado does not support the Frees' position that the water court lacked authority to issue a decree allowing the Tidds to make a hydropower use of Garner Creek water diverted at the Garner Creek Ditch No. 1 headgate. To the contrary, PSC was making a hydropower use of Green Mountain storage water released into the Colorado River for downstream irrigation and municipal uses, including the Grand Valley Reclamation Project. Id. at 1565.

22 Further, while the Tenth Cirenit initially mischaracterized released storage water as "no longer public property," later in the opinion it correctly stated that "a water right is a usufructuary right, and is in no sense a right of ownership of the corpus of the water itself." Id. at 1566; see also Kobobel, 249 P.3d at 1134 ("[One does not 'own' water but owns the right to use water within the limitations of the prior appropriation doctrine."); § 87-92-103(12) (defining a "water right" as "a right to use in accordance with its priority a certain portion of the waters of the state by reason of the appropriation of the same").

123 Returning to the case before us, the Frees do not own the physical water they divert through the Garner Creek Ditch No. 1 headgate; instead they own the right to beneficially use the water for irrigation. The fact that the same physical water owned by the public and diverted from Garner Creek will be put to an additional use under a separate water right before reaching the Frees' place of beneficial use in no way deprived the water court of authority to issue the conditional water right decree with a 2010 priority in this case. The Frees overlook the fact that the General Assembly has provided that the public's water resource becomes "available" to an adjudicated water right either because there is unappropriated water available in a stream that is not over-. appropriated or, when the affected stream is over-appropriated, the decree for the junior water right contains sufficient conditions to prevent injury to other adjudicated water rights. See Buffalo Park Dev. Co., 195 P.3d at 683-86.

124 As the water court observed, in Empire Lodge we gave effect to the provisions of the Water Right Determination and Administration Act of 1969 (the "1969 Act"), §§ 37-92-101 to -602, C.R.S. (2014), centering on: (1) reinforcing the adjudication and administration of decreed water rights in order of their priority and (2) maximizing the use of Colorado's limited water supply for as many decreed uses as possible consistent with meeting the state's interstate delivery obligations under United States Supreme Court equitable apportionment decrees and congressionally approved interstate compacts. Empire Lodge, 39 P.3d at 1150. For example, augmentation plans provide a means by which already appropriated water can be diverted and used under an adjudicated water right so long as the decree authorizing such a water right contains sufficient conditions to protect against injury to other water rights. Id.; see also Buffalo Park Dev. Co., 195 P.3d at 684-85. The Frees argument that the water court lacks authority to decree an additional appropriation unless there is unappropriated water to assign to that decree flatly contradicts the intent and provisions of the 1969 Act to foster a multiplicity of non-injurious uses. In light of over-appropriation of stream systems, flexibility in the appropriation and use of the public's water resource concurrently and in succession, without injury, is a fundamental goal of the 1969 Act. See Empire Lodge, 39 P.3d at 1144 n.3, 1149-50; High Plains, 120 P.3d at 721-22.³

{25 Nevertheless, the Tidds cannot require the Frees to divert their irrigation water from Garner Creek. Their 2010 hy-dropower right must be in priority vis a vis all the users on Garner Creek to divert when the Frees are not diverting. We have stated that the "Colorado Constitution guarantees the right to . use beneficially a specified amount of natural stream surface and tributary groundwater in priority under a decree, to the exclusion of all others not then in priority under a decreed water right." Upper Eagle Reg'l Water Auth. v. Wolfe, 230 P.3d 1203, 1210 (Colo.2010). But this right is the fundamental right to exelude those not in priority from taking actions that would injure a senior's water right, not the right to exclude others from using the same physical water when multiple rights can be served without injury. The true value of a water right is the ability to use the water beneficially in decreed priority; it does not reside in physical ownership of the public's water resource. See Navajo Dev. Co. v. Sanderson, 655 P.2d 1374, 1877 (Colo.1982) (observing that the value of a water right "is in its relative priority and the right to use the resource and not in the continuous tangible possession of that resource"). Here, the parties to the case agree that the Tidds' appropriation would not injure the Frees' existing water right.

126 The Frees also argue that the Tidds may only appropriate "new water from the natural stream over that which has already been appropriated by the [Frees]." But as we discuss above, Colorado law does not require an applicant for a conditional water right, such as the non-consumptive hydropower water right in this case, to appropriate "new water"; rather, in order for an applicant to receive a conditional water right, the applicant must show that there is "available water" to be put to a beneficial use. The water court found that the availability of this water at the Garner Creek Ditch No. 1 headgate meets the water availability standards for issuance of a decree for the Tidds' non-consumptive hydropower use. The water court reasoned:

Thus, since the [Frees'] water right is for the beneficial use of irrigation, the water right the [Frees] own when they divert water at the Garner Creek Ditch No. 1 head-gate, is the right to use a certain amount of water for the purposes of irrigation. But, they do not own the right to use that water for hydropower purposes, because the extent of their water right is determined by their beneficial use of the water, and they have not used the water for hydropower purposes nor have they obtained a decree allowing them to use the water for hydropower purposes. Accordingly, there is water available at the Garner Creek No. 1 Ditch head-gate for appropriation for the non-consumptive use of the production of hydropower.

127 The General Assembly's enactment of the "can and will' statute, section 37-92-305(9)(b), C.R.S. (2014), requires

an applicant for a conditional water rights decree to prove the availability of water under river conditions existing at the time of the application as a threshold requirement to establishing that there is a substantial probability that the project can and will be completed with diligence and within a reasonable time.

Bd. of Cnty. Comm'rs v. United States, 891 P.2d at 957; see also Buffalo Park Dev. Co., 195 P.3d at 683.

128 Our previous cases make clear that whether water is available is inseparably intertwined with the question of whether a new appropriation will injure senior water rights. In Mount Emmons Mining Co., we reasoned that "to satisfy the 'can and will test, new appropriators must convince the water court that their diversion will cause no harm to senior appropriators: i.e., that water is available." 40 P.3d at 1260; see also City of Aurora ex rel. Util Enter. v. Colo. State Eng'r, 105 P.3d 595, 607 n. 12 (Colo.2005) ("Surface water is overappropriated when there is not enough water in the stream during irrigation season or at other times of the year to satisfy all decreed appropriations."); Simpson v. Cotton Creek Circles, LLC, 181 P.3d 252, 261 (Colo.2008) (reasoning that waters in a confined aquifer were not unappropriated when new withdrawals would cause material injury to existing water rights). Under the terms and conditions of the 2010 hydropower conditional water right decree, which guards against injury to the Frees) water right, there is water available for the Tidds':decreed use.

129 Finally, the Frees argue that the Tidds will not be able to make an appropriation as defined by the Colorado Constitution and the 1969 Act. We disagree. The Tidds applied for a conditional water right to appropriate water from Garner Creek for hydropower use. "[A] conditional water right holds a place in the priority system to which the water right antedates in the event the appropriator places the unappropriated water to beneficial use." Empire Lodge, 39 P.3d at 1147. An appropriation entails "application of a specified portion of the waters of the state to a beneficial use pursuant to the procedures prescribed by law." § 37-92-108@8)(a). The statute defines "waters of the state" as "all surface and underground water in or tributary to all natural streams within the state of Colorado." § 37-92-108(18). The decree identifies Garner Creek as the source of the water for the Tidds' appropriation. Garner Creek is a natural stream in Colorado and the Tidds intend to apply water from Garner Creek for hydro-power use, which Colorado law recognizes as a legitimate beneficial use. See Bd. of Cnty. Comm'rs v. Crystal Creek Homeowners' Ass'n, 14 P.3d 325, 337 (Colo.2000) (citing § 87-95-103(2)).

1 80 Small-scale hydropower projects benefit the public because they offer an alternative source of energy that has generally minimal environmental impacts, diverts less water, is less susceptible to blackout and damage as a result of storms, and does not require the creation of dams or reservoirs because they rely on existing infrastructure. ⁴ Gina S. Warren, Hydropower: Time for a Small Makeover, 24 Ind. Int'l & Comp. L. Rev. 249, 249-50 (2014). In granting the Tidds' non-consumptive conditional water right application, the water court followed Colorado law allowing the public's scarce water resource to be put to multiple beneficial uses while protecting decreed senior water rights. ⁵

IIL.

T31 Accordingly, we affirm the water court's entry of the conditional water right decree in Case No. 10CW31L.

JUSTICE MARQUEZ dissents, and JUSTICE COATS joins in the dissent.

1 . The issue presented on appeal by Plaintiff-Appellants is: "Whether the Water court erred in decreeing an appropriation for a new use for hydropower purposes for the very same water that is appropriated under the Garner Creek Ditch No. 1 for irrigation purposes over the objection of the owner of the Garner Creek Ditch No. 1 water right."

2 . "Saguache" originates from a Ute word meaning "water at the blue earth." 2008 Saguache County Visitor's Guide, http://www.saguache tourism.com (last visited May 27, 2015).

3 . The Frees also object that the Tidds' decree may somehow interfere with a change of water right they might apply for in the future. However, a change of water right is predicated upon a quantification of the historical consumptive use made of the water right over a representative period of time and involves a fact-specific inquiry that must await an actual change application. See E. Cherry Creek Valley, ¶¶ 21-22.

4 . In 2010, Colorado signed a Memorandum of Understanding with the Federal Energy Regulatory Commission to streamline and simplify the authorization of small-scale hydropower projects in Colorado. See Fed. Energy Regulatory Comm'n, Memorandum of Understanding Between the Federal Energy Regulatory Commission and the State of Colorado Through the Governor's Energy Office to Streamline and Simplify the Authorization of Small Scale Hydropower Projects (2010).

5 . The Tidds ask this court to rule on when they must submit an application for a finding of reasonable diligence. We direct the Tidds to section 37-92-301(4)(a)(I), C.R.S. (2014), which states:

In every sixth calendar year after the calendar year in which a water right is conditionally decreed, or in which a finding of reasonable diligence has been decreed, the owner or user thereof, if such owner or user desires to maintain the same, shall file an application for a finding of reasonable diligence, or said conditional water right shall be considered abandoned.