§ 37-92-102 — Legislative declaration - basic tenets of Colorado water law
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(1)
(a) It is hereby declared to be the policy of the state of Colorado that all water in or
tributary to natural surface streams, not including nontributary groundwater as that
term is defined in section 37-90-103, originating in or flowing into this state have
always been and are hereby declared to be the property of the public, dedicated to
the use of the people of the state, subject to appropriation and use in accordance
with sections 5 and 6 of article XVI of the state constitution and this article. As
incident thereto, it is the policy of this state to integrate the appropriation, use, and
administration of underground water tributary to a stream with the use of surface
water in such a way as to maximize the beneficial use of all of the waters of this
state.
(b) A stream system which arises as a natural surface stream and, as a
natural or man-induced phenomenon, terminates within the state of Colorado
through naturally occurring evaporation and transpiration of its waters, together
with its underflow and tributary waters, is a natural surface stream subject to
appropriation as provided in paragraph (a) of this subsection (1).
(2) Recognizing that previous and existing laws have given inadequate
attention to the development and use of underground waters of the state, that the
use of underground waters as an independent source or in conjunction with surface
waters is necessary to the present and future welfare of the people of this state,
and that the future welfare of the state depends upon a sound and flexible
integrated use of all waters of the state, it is hereby declared to be the further
policy of the state of Colorado that, in the determination of water rights, uses, and
administration of water, the following principles shall apply:
(a) Water rights and uses vested prior to June 7, 1969, in any person by virtue
of previous or existing laws, including an appropriation from a well, shall be
protected subject to the provisions of this article.
(b) The existing use of groundwater, either independently or in conjunction
with surface rights, shall be recognized to the fullest extent possible, subject to the
preservation of other existing vested rights, but, at his own point of diversion on a
natural watercourse, each diverter must establish some reasonable means of
effectuating his diversion. He is not entitled to command the whole flow of the
stream merely to facilitate his taking the fraction of the whole flow to which he is
entitled.
(c) The use of groundwater may be considered as an alternate or
supplemental source of supply for surface decrees entered prior to June 7, 1969,
taking into consideration both previous usage and the necessity to protect the
vested rights of others.
(d) No reduction of any lawful diversion because of the operation of the
priority system shall be permitted unless such reduction would increase the amount
of water available to and required by water rights having senior priorities.
(3) Further recognizing the need to correlate the activities of mankind with
some reasonable preservation of the natural environment, the Colorado water
conservation board is hereby vested with the exclusive authority, on behalf of the
people of the state of Colorado, to appropriate in a manner consistent with sections
5 and 6 of article XVI of the state constitution, such waters of natural streams and
lakes as the board determines may be required for minimum streamflows or for
natural surface water levels or volumes for natural lakes to preserve the natural
environment to a reasonable degree. In the adjudication of water rights pursuant to
this article and other applicable law, no other person or entity shall be granted a
decree adjudicating a right to water or interests in water for instream flows in a
stream channel between specific points, or for natural surface water levels or
volumes for natural lakes, for any purpose whatsoever. The board also may acquire,
by grant, purchase, donation, bequest, devise, lease, exchange, or other contractual
agreement, from or with any person, including any governmental entity, such water,
water rights, or interests in water that are not on the division engineer's
abandonment list in such amount as the board determines is appropriate for
streamflows or for natural surface water levels or volumes for natural lakes to
preserve or improve the natural environment to a reasonable degree. At the request
of any person, including any governmental entity, the board shall determine in a
timely manner, not to exceed one hundred twenty days unless further time is
granted by the requesting person or entity, what terms and conditions it will accept
in a contract or agreement for such acquisition. Any contract or agreement
executed between the board and any person or governmental entity that provides
water, water rights, or interests in water to the board shall be enforceable by either
party thereto as a water matter under this article, according to the terms of the
contract or agreement. The board shall adopt criteria for evaluating proposed
contracts or agreements for leases or loans of water, water rights, or interests in
water under this subsection (3), including, but not limited to, criteria addressing
public notice, the extent to which the leased or loaned water will benefit the natural
environment to a reasonable degree, and calculation of the compensation paid to
the lessor of the water based upon the use of the water after the term of the lease.
As a condition of approval of a proposed contract or agreement for a lease or loan
of water, water rights, or interests in water pursuant to this subsection (3), the
board shall obtain confirmation from the division engineer that the proposal is
administrable and is capable of meeting all applicable statutory requirements. All
contracts or agreements entered into by the board for leases or loans of water,
water rights, or interests in water pursuant to this subsection (3) shall require the
board to maintain records of how much water the board uses under the contract or
agreement each year it is in effect and to install any measuring devices deemed
necessary by the division engineer to administer the contract or agreement and to
measure and record how much water flows out of the reach after use by the board
under the contract or agreement, unless a measuring device already exists on the
stream that meets the division engineer's requirements. All contracts or
agreements for water, water rights, or interests in water under this subsection (3)
shall provide that, pursuant to the water court decree implementing the contract or
agreement, the board or the lessor, lender, or donor of the water may bring about
beneficial use of the historical consumptive use of the leased, loaned, or donated
water right downstream of the instream flow reach as fully consumable reusable
water. The board shall file a change of water right application or other application
with the water court to obtain a decreed right to use water for instream flow
purposes under a contract or agreement for a lease or loan of water, water rights,
or interests in water pursuant to this subsection (3). The resulting water court
decree shall quantify the historical consumptive use of the leased or loaned water
right and determine the method by which the historical consumptive use should be
quantified and credited during the term of the agreement for the lease or loan of
the water right. Said method shall recognize the actual amount of consumptive use
available under the leased or loaned water right and shall not result in a reduction
of the historical consumptive use of that water right during the term of the lease or
loan, except to the extent such reduction is based upon the actual amount of water
available under said rights. All water rights under such decrees shall be
administered in priority. The board may not accept a donation of water rights that
either would require the removal of existing infrastructure without approval of the
current owner of such infrastructure or that were acquired by condemnation. The
board may use any funds available to it for acquisition of water rights and their
conversion to instream flow rights. The board may initiate such applications as it
determines are necessary or desirable for utilizing water, water rights, or interests
in water appropriated, acquired, or held by the board, including applications for
changes of water rights, exchanges, or augmentation plans. Prior to the initiation of
any such appropriation or acquisition, the board shall request recommendations
from the division of parks and wildlife. The board also shall request
recommendations from the United States department of agriculture and the United
States department of the interior. Nothing in this article shall be construed as
authorizing any state agency to acquire water by eminent domain or to deprive the
people of the state of Colorado of the beneficial use of those waters available by
law and interstate compact. Nothing in this subsection (3) shall impact section 37-60-121 (2.5). Any appropriation made pursuant to this subsection (3) shall be subject
to the following principles and limitations:
(a) Any such appropriation which is based upon water imported from one
water division to another by some other appropriator shall not, as against the
appropriator of such imported water or his successor in interest, constitute a claim,
bar, or use for any purpose whatsoever.
(b) Any such appropriation shall be subject to the present uses or exchanges
of water being made by other water users pursuant to appropriation or practices in
existence on the date of such appropriation, whether or not previously confirmed by
court order or decree.
(c) Before initiating a water rights filing, the board shall determine that the
natural environment will be preserved to a reasonable degree by the water
available for the appropriation to be made; that there is a natural environment that
can be preserved to a reasonable degree with the board's water right, if granted;
and that such environment can exist without material injury to water rights.
(c.5) Notwithstanding section 37-92-103 (6), as to any application filed by
the board on or after July 1, 1994, the board may not acquire conditional water
rights or change conditional water rights to instream flow uses.
(d) Nothing in this section is intended or shall be construed to allow
condemnation by this state or any person of easements or rights-of-way across
private lands to gain access to a segment of a stream or lake where a water right
decree has been awarded to the Colorado water conservation board.
(e) All recommendations, including those of the United States, which are
transmitted to the board for water to be retained in streams or lakes to preserve the
natural environment to a reasonable degree must be made with specificity and in
writing in order that any appropriation made by the board may be integrated into
the statewide system for the administration of water rights. Filings for
appropriations by the board shall be consistent with other appropriations and with
the requirements of this article.
(4) Any appropriation made pursuant to subsection (3) of this section shall
also be subject to the following principles and limitations:
(a) Utilizing a public notice and comment procedure, the board, in its
discretion, may determine whether or not to appropriate minimum streamflows or
natural lake levels, or decrease such an appropriation, to preserve the natural
environment to a reasonable degree. The board may adopt conditions attached to
an appropriation or decreased appropriation, may file or withdraw statements of
opposition in water court cases, and enter into stipulations for decrees or other
forms of contractual agreements, including enforcement agreements, that it
determines will preserve the natural environment to a reasonable degree. All
contractual agreements and stipulations entered into by the board prior to May 23,
1996, regarding enforcement of its appropriations shall be given full force and
effect. Any increase to an existing minimum streamflow or natural lake level
appropriation or decree shall be made as a new appropriation.
(b) (I) Except as provided pursuant to paragraph (d) of this subsection (4), if
the board determines that it is appropriate to consider decreasing an existing
decreed appropriation, the board shall proceed through an adequate public notice
and comment process to consider such decrease at a public meeting.
(II) For the purposes of this paragraph (b), adequate public notice and
comment process shall include the following:
(A) Notice of the proposed decrease and the date of the public meeting at
which it will first be considered shall be printed in the resume in the water court
having jurisdiction over the decree that is the subject of the decrease. The first
public meeting of the board at which the decrease is to be considered shall occur at
least sixty-three days after the month in which the resume is published. Notice
shall also be published in a newspaper of statewide distribution within thirty-five to
forty-nine days prior to such first public meeting.
(B) If the board decides at such first public meeting to consider the proposed
decrease, the board shall announce publicly the date of a subsequent public
meeting for such purpose.
(C) On the written request of any person made within thirty-five days after
the date of the first public meeting, the board shall delay the subsequent public
meeting for up to one year to allow such person the opportunity for the collection
of scientific data material to the proposed decrease. Such request may not be
interposed solely for delay of the proceedings.
(D) On the written request of any person made within thirty-five days after
the date of the first public meeting, the board shall, within sixty-three days after
such request, establish fair and formal procedures for the subsequent public
meeting, including the opportunity for reasonable disclosure, discovery, subpoenas,
direct examination, and cross examination, and may promulgate rules that will
assure orderly procedures. Subject to these rights and requirements, where a
meeting will be expedited and the interests of the participants will not be
substantially prejudiced thereby, the board may receive all or part of the evidence
in written form.
(III) The board's final written determination regarding the decrease shall
state its effective date, be mailed promptly to the persons who appeared by written
or oral comment at the board's proceeding, and be filed promptly with the water
court. Within thirty-five days after such effective date, any person who appeared by
written or oral comment at the board's proceeding may file with the water court and
serve the board a petition for judicial review of the board's determination that the
decreed appropriation as decreased will preserve the natural environment to a
reasonable degree, based on the administrative record and utilizing the criteria of
section 24-4-106 (6) and (7), C.R.S. Any such person may request a stay in
accordance with the criteria of section 24-4-106 (5), C.R.S., pending the review
proceeding. If no petition is filed, the court shall promptly enter an order decreasing
the board's appropriation decree in accordance with the board's written
determination. If a petition is filed, the court shall promptly order briefing and oral
argument and render its decision to affirm or set aside the board's determination. If
the board's determination is affirmed, the court shall promptly enter an order
decreasing the board's appropriation decree in accordance with the board's written
determination. If the board's determination is set aside, the court shall enter its
order of relief under the provisions of section 24-4-106 (7), C.R.S. Appellate review
of the court's order shall be as allowed in other water matters.
(c) The board's determinations regarding the matters to be determined by
the board under paragraph (c) of subsection (3) of this section and paragraph (d) of
this subsection (4) for new appropriations shall be subject to judicial review in the
water court application and decree proceedings initiated by the board, based on the
board's administrative record and utilizing the criteria of section 24-4-106 (6) and
(7), C.R.S. The board may file applications for changes of water rights and
augmentation plans, and the water court shall determine matters that are within
the scope of section 37-92-305.
(d) The board may participate in the recovery implementation program for
endangered fish species in the upper Colorado river basin and appropriate and
obtain decrees for minimum instream flows or natural lake levels, including decree
provisions for modification and enforcement, the implementation of which shall not
be subject to paragraph (b) of this subsection (4), as it determines will preserve the
natural environment of the Colorado river endangered fish within Colorado to a
reasonable degree while protecting existing uses within Colorado and not depriving
the people of the state of Colorado of the beneficial use of those waters available
by law and interstate compact.
(e) Sub-subparagraphs (A) and (C) of subparagraph (II) of paragraph (b) of
this subsection (4) shall not apply to the board's consideration of any proposed
decrease which was included in a meeting notice and agenda issued by the board
prior to May 23, 1996, whether or not the board had scheduled or taken any action
on the proposal by such date. Sub-subparagraph (D) of subparagraph (II) of
paragraph (b) of this subsection (4) shall not apply to such a proposal so long as the
board establishes fair and formal procedures pursuant to such sub-subparagraph
(D) at or before the first public meeting thereon for any subsequent public meeting,
including the opportunity for reasonable disclosure, discovery, subpoenas, direct
examination, and cross examination of witnesses. All other provisions in paragraph
(b) of this subsection (4) shall apply to any decrease after May 23, 1996.
(4.5) Plan for augmentation to augment streamflows. (a) Legislative
declaration. The general assembly hereby finds, determines, and declares that the
Colorado water conservation board would benefit from direction with regard to
water court applications for plans for augmentation to augment streamflows, as
identified in subsection (3) of this section.
(b) Plan approval. To obtain a decreed plan for augmentation, the board,
either as sole applicant or together with an owner of a decreed water right for
which a change of water rights to include any augmentation use has been judicially
approved, must file an application with the water court for approval of a plan for
augmentation to augment streamflows and protect augmentation deliveries made
pursuant to the plan for augmentation within a specific stream reach or reaches, at
rates the board determines are appropriate to preserve or improve the natural
environment to a reasonable degree. The application and approval process for a
plan for augmentation to augment streamflows are subject to the following
principles and limitations:
(I) The board may file an application only if the owner of the water right that
is decreed for augmentation use is identified in the application and consents to the
application.
(II) The procedures, standards, and requirements of this article 92 for plans
for augmentation apply to applications filed under this subsection (4.5).
(III) A plan filed under this subsection (4.5) must use, for augmentation only,
water rights:
(A) For which the historical consumptive use has been quantified; and
(B) For which a change of water rights to include any augmentation use has
been judicially approved.
(IV) If the augmentation water right meets the requirements of subsection
(4.5)(b)(III) of this section, no further change of that augmentation water right is
required.
(V) The use of water as part of a plan for augmentation to augment
streamflows is subject to the terms and conditions of any applicable decree to
which that water is subject.
(VI) Additional terms and conditions must be imposed on the use of water as
part of a plan for augmentation to augment streamflows as necessary to prevent
injury to the owners of vested water rights or decreed conditional water rights. The
terms and conditions must include terms and conditions to prevent injury to other
water rights that result from any change in the time, place, or amount of water
available for diversion or exchange to the extent that other appropriators have
relied upon the stream conditions that resulted from the historical use of the
augmentation water rights described in subsection (4.5)(b)(III) of this section or
added pursuant to section 37-92-305 (8)(c) before their use in the plan for
augmentation of streamflows. A junior appropriator is entitled to the continuation
of stream conditions as the conditions existed at the time of the junior
appropriator's appropriation.
(VII) An applicant must prove that the plan for augmentation to augment
streamflows will not injure other water users' undecreed existing exchanges of
water to the extent the undecreed existing exchanges of water have been
administratively approved before the date of the filing of the application for
approval of the plan for augmentation to augment streamflows.
(VIII) The augmentation water used to augment streamflows in a plan for
augmentation to augment streamflows shall not be diverted within the specific
stream reach by an exchange, plan for substitution, plan for augmentation, or other
means that cause a reduction of the augmentation water added to that stream
reach. The augmentation water is subject to such reasonable transit losses as may
be imposed by the water court or the state and division engineers.
(IX) If operation of a plan for augmentation requires the use of, or making of
physical modifications to, an existing diversion structure within a stream reach to
allow the augmentation water to bypass the structure, the operator of the plan
must have consent from the owner of the existing structure and bear all reasonable
construction costs associated with any physical modifications and all reasonable
operational and maintenance costs incurred by the owner of the structure that
would not have been incurred in the absence of the physical modifications to the
structure.
(c) Saving clause. This subsection (4.5):
(I) Does not impair or in any way affect any water court decree,
administrative authorization, or agreement that allows water decreed for
environmental, piscatorial, water quality, recreational, or other in-channel purposes
to be used in the natural stream channel for the decreed purposes;
(II) Is not intended to be the exclusive means of authorizing water decreed
for augmentation purposes to be used for environmental, piscatorial, water quality,
recreational, or other in-channel purposes, including the maintenance of dominion
and control over the water released from a specific reservoir;
(III) Does not authorize, restrict, or preclude future water rights
appropriations, administrative authorizations, or other agreements for the purposes
listed in this subsection (4.5); and
(IV) Does not affect applications by the Colorado water conservation board
for plans for augmentation not described in this subsection (4.5).
(5) Within thirty-five days after initiating any water rights filing for the
adjudication of a recreational in-channel diversion, any county, municipality, city
and county, water district, water and sanitation district, water conservation district,
or water conservancy district shall submit a copy of the water rights application to
the board for review.
(6) (a) (Deleted by amendment, L. 2006, p. 906, � 1, effective May 11, 2006.)
(b) The board, after deliberation in a public meeting, shall consider the
following factors and make written findings as to each:
(I) Whether the adjudication and administration of the recreational in-channel diversion would materially impair the ability of Colorado to fully develop
and place to consumptive beneficial use its compact entitlements;
(II) and (III) (Deleted by amendment, L. 2006, p. 906, � 1, effective May 11,
2006.)
(IV) Whether exercise of the recreational in-channel diversion would cause
material injury to instream flow water rights appropriated pursuant to subsections
(3) and (4) of this section; and
(V) Whether adjudication and administration of the recreational in-channel
diversion would promote maximum utilization of waters of the state.
(VI) (Deleted by amendment, L. 2006, p. 906, � 1, effective May 11, 2006.)
(c) Within ninety days after the filing of statements of opposition, the board
shall report its findings to the water court for review pursuant to section 37-92-305
(13). The board may fully participate in the water court proceedings.
(d) Nothing in subsection (5) of this section or this subsection (6) shall apply
in any way to any application for a water right or conditional water right for
recreational in-channel diversion purposes that was filed prior to January 1, 2001.
(e) Nothing in subsection (5) of this section or this subsection (6) shall apply
in any way to any water right or conditional water right for recreational in-channel
diversion purposes for which a decree was entered prior to June 5, 2001, including
any proceeding concerning diligence on such conditional water right or any
proceeding to make such conditional water right absolute.
(7) Water users served by a provider of municipal or industrial water supplies
may use graywater and install graywater treatment works, as those terms are
defined in section 25-8-103 (8.3) and (8.4), C.R.S., if:
(a) The use of graywater is limited to the confines of the operation that
generates the graywater;
(b) Graywater is used for purposes that are permissible under the
municipality's or water district's water rights; and
(c) Graywater is used in compliance with the requirements of section 25-8-205 (1)(g), C.R.S.
(8) Reservoir releases for fish and wildlife mitigation - definitions. (a) The
general assembly hereby finds, determines, and declares that:
(I) Allowing the owner of a water storage right that allows water to be stored
in new reservoir capacity to contract with the board to dedicate to the board water
stored under the water storage right for release from the new reservoir capacity to
reasonably avoid, minimize, or mitigate impacts of the new reservoir capacity on
fish and wildlife resources within an identified stream reach may enable the owner
of the water storage right to comply with mitigation measures identified in a fish
and wildlife mitigation plan approved under section 37-60-122.2;
(II) Accordingly, for the limited purpose of providing additional methods to
comply with a fish and wildlife mitigation plan approved under section 37-60-122.2,
it is appropriate to create a water court process to allow the owner of a water
storage right that allows water to be stored in new reservoir capacity, a portion of
which water will then be dedicated to the board, to:
(A) Obtain protection for water to be released from the new reservoir
capacity, up to the amount of water that is appropriate for streamflows to preserve
or improve the natural environment to a reasonable degree within the qualifying
stream reach; and
(B) Maintain dominion and control over the released water through a
qualifying stream reach;
(III) The released water subject to a protected mitigation release authorized
under this subsection (8) must be rediverted at or below the downstream
termination point of the qualifying stream reach, either directly at a surface point of
diversion or by a decreed exchange as permitted in this subsection (8) for use by an
owner for the decreed beneficial uses of that water storage right;
(IV) Except as otherwise provided in this subsection (8), the contractual
dedication to the board must comply with the procedures and protections for other
water rights specified in subsection (3) of this section;
(V) The water court process and resulting decree must ensure that:
(A) Protected mitigation releases do not expand the water storage right that
is to provide the water for the protected mitigation releases or injure other water
rights;
(B) The protected mitigation releases will be protected through the
qualifying stream reach up to the amount of water that is appropriate for
streamflows to preserve or improve the natural environment to a reasonable degree
within the qualifying stream reach; and
(C) Diversions of the protected mitigation releases within the qualifying
stream reach by exchanges, substitution plans, augmentation plans, or other means
that cause a reduction in the protected mitigation releases within the qualifying
stream reach, other than reductions caused by evaporation, transportation, and
other losses, will be prevented; and
(VI) Through the dedication of the protected mitigation releases to the board
under the procedures set forth in subsection (3) of this section, except as otherwise
provided in this subsection (8), and through the water court decree approving the
protected mitigation releases, the protected mitigation releases will serve a
secondary instream beneficial use, specifically the preservation or improvement of
the natural environment to a reasonable degree within the qualifying stream reach.
(b) As used in this subsection (8):
(I) Board means the Colorado water conservation board created in section
37-60-102.
(II) Mitigation release means:
(A) The release of water from a water storage right stored in new reservoir
capacity into a qualifying stream reach to reasonably avoid, minimize, or mitigate
the impacts of the new reservoir capacity on fish and wildlife resources within the
qualifying stream reach in accordance with a fish and wildlife mitigation plan
approved under section 37-60-122.2; and
(B) The rediversion of the released water at or below the downstream
termination point of the qualifying stream reach, either directly at a surface point of
diversion or by a decreed in-priority exchange to an exchange-to point identified in
the decreed in-priority exchange that is outside of the qualifying stream reach, for
use by an owner for the decreed beneficial uses of that water storage right.
(III) New reservoir capacity means additional water storage capacity
resulting from the construction of a new reservoir or a physical enlargement of an
existing reservoir if the construction or physical enlargement is completed on or
after August 8, 2018.
(IV) Owner means the person that owns the water storage right that is to
provide the water for a protected mitigation release, and, in the case of a water
storage right owned by a water conservancy district, water conservation district,
municipality, special district, or mutual ditch company, includes the residents,
allottees, members, customers, shareholders, or member ditch companies of that
entity; and, in the case of a water storage right owned by an irrigation district,
includes the landowners within the district.
(V) Protected mitigation release means the amount of water to be released
for a mitigation release that:
(A) The board determines is appropriate for streamflows to preserve or
improve the natural environment to a reasonable degree within an identified
qualifying stream reach;
(B) Is approved by a water court decree pursuant to this subsection (8); and
(C) Is protected from diversion, exchange, or use by holders of conditional or
vested water rights or other persons that cause a reduction in the protected
mitigation release at any location within the qualifying stream reach, other than any
reductions caused by evaporation, transportation, and other losses.
(VI) Qualifying stream reach means all or a portion of a natural stream of
the state that is identified in a fish and wildlife mitigation plan approved under
section 37-60-122.2 and within which the board determines, and the water court
decree approves in accordance with this subsection (8), that water from a protected
mitigation release is appropriate for streamflows to preserve or improve the natural
environment to a reasonable degree. A qualifying stream reach must be identified
by an upstream point at which the protected mitigation release enters the natural
stream and a downstream termination point.
(VII) Surface point of diversion means a structure that diverts surface
water only. Surface point of diversion does not include:
(A) A structure that diverts groundwater, whether through a well, infiltration
gallery, or other type of groundwater diversion structure; or
(B) Delivery into a facility used to recharge an alluvial aquifer.
(c) (I) An owner may, in accordance with and after complying with the
requirements of this subsection (8), make a protected mitigation release.
(II) Holders of conditional or vested water rights or other persons shall not
divert, exchange upon, or use a protected mitigation release within the qualifying
stream reach unless the diversion, exchange, or use is fully augmented so that
there is no reduction in the protected mitigation release at any location within the
qualifying stream reach, other than reductions caused by evaporation,
transportation, and other losses.
(III) The state engineer shall administer protected mitigation releases made
in accordance with this subsection (8) and the terms and conditions of decrees
approving protected mitigation releases.
(IV) (A) Except for reductions caused by evaporation, transportation, and
other losses, and subject to subsections (8)(c)(IV)(B) and (8)(c)(IV)(C) of this section,
an owner shall: Redivert all protected mitigation releases at or below the
downstream termination point of the qualifying stream reach, either directly at a
surface point of diversion or by a decreed in-priority exchange to an exchange-to
point identified in the decreed in-priority exchange that is outside of the qualifying
stream reach; and apply the water to the decreed beneficial uses of the water
storage right that provides the water for the protected mitigation release.
(B) Except as provided in subsection (8)(c)(IV)(C) of this section, an owner
may redivert water associated with protected mitigation releases in accordance
with subsection (8)(c)(IV)(A) of this section by exchange into storage, which
exchange shall be administered with a priority date no earlier than the date of
approval of the fish and wildlife mitigation and enhancement plan pursuant to
section 37-60-122.2, and subsequently apply the water to the decreed beneficial
uses of the water storage right that provides the water for the protected mitigation
release.
(C) An owner shall not redivert water associated with protected mitigation
releases by exchange through all or a portion of the qualifying stream reach or to
the reservoir of origin.
(V) Water present in the qualifying stream reach, other than the protected
mitigation releases, remains available to other water users for beneficial uses and
may be diverted and beneficially used by other water users in accordance with the
priority system and any relevant decree.
(VI) The procedures set forth in this subsection (8) apply only to the
adjudication of proposed protected mitigation releases from new reservoir capacity
and do not alter the procedures or legal standards applicable to any other type of
water court application.
(VII) An application for approval of a proposed protected mitigation release
filed in accordance with this subsection (8) must not include, and shall not be
consolidated or joined with, any other water court application.
(d) An owner that intends to make protected mitigation releases in
accordance with this subsection (8) shall, before any such releases may be
administered as protected mitigation releases:
(I) Dedicate the proposed protected mitigation releases to the board by
grant, donation, or other contractual agreement in accordance with subsections (3)
and (8)(e) of this section;
(II) Agree to make the proposed protected mitigation releases available to
the board within the qualifying stream reach;
(III) With the board as a co-applicant, file an application in water court in the
water division in which the new reservoir capacity is located, seeking approval of
the proposed protected mitigation releases, by the last day of the twelfth month
following the month in which the new reservoir capacity is certified for storage by
the state engineer; except that an application must not include any other claim for
relief; and
(IV) Obtain a final water court decree approving the protected mitigation
releases.
(e) (I) Except as otherwise provided in this subsection (8)(e), a dedication to
the board pursuant to subsection (8)(d)(I) of this section of an interest in water
yielded from a water storage right that will be stored in new reservoir capacity is
subject to subsection (3) of this section for the dedication of an interest in water to
the board, including the requirement in subsection (3) of this section that the board
make a determination that the proposed protected mitigation releases are
appropriate for streamflows to preserve or improve the natural environment to a
reasonable degree within the qualifying stream reach.
(II) The board's contractual interest in water acquired in accordance with this
subsection (8) may be yielded from a water right that is either absolute or
conditional at the time of acquisition.
(III) To obtain a decreed right to use proposed protected mitigation releases
for instream flow purposes, the owner and the board need not file an application
with the water court to change the water storage right from which the proposed
protected mitigation releases are to be made.
(IV) The board need not hold a decreed appropriation for instream flows
within the qualifying stream reach as a prerequisite for an owner to dedicate
proposed protected mitigation releases to the board in accordance with this
subsection (8).
(f) (I) To satisfy the requirements of subsections (8)(d)(III) and (8)(d)(IV) of
this section, the board and the owner must file a water court application as co-applicants pursuant to subsection (8)(d)(III) of this section. The water court shall
enter a decree approving the proposed protected mitigation releases if:
(A) The board demonstrates that it has duly determined in accordance with
this subsection (8) and with subsection (3) of this section that the proposed
protected mitigation releases are appropriate for streamflows to preserve or
improve the natural environment to a reasonable degree within the qualifying
stream reach. If a party challenges the board's determination in the water court
proceeding, the board shall assemble and submit to the court the complete
administrative record upon which the board made the determination. The court shall
base its review of the board's determination on the administrative record, using the
criteria set forth in section 24-4-106 (6) and (7).
(B) The owner proves that the proposed protected mitigation releases: Will
not cause an expansion of use beyond the limits of use of the decreed water
storage right from which the mitigation releases are to be made; will not cause
injury to vested water rights, decreed conditional water rights, subsequently
adjudicated water rights that are the subject of a pending water court application
filed before August 8, 2018, or other water users' uses or exchanges of water being
made pursuant to appropriation or practices in existence on the date of the filing of
the application for approval of the proposed protected mitigation releases; are
administrable by the division engineer; and have been dedicated to and approved by
the board in compliance with the requirements and procedures of subsection (8)(e)
of this section.
(II) For purposes of determining injury pursuant to subsection (8)(f)(I)(B) of
this section, the inability of other water users to divert, exchange upon, or use the
proposed protected mitigation releases within the qualifying stream reach shall not
be considered injury.
(III) The water court shall not requantify the water storage right from which
the protected mitigation releases are proposed to be made.
(IV) A decree approving a protected mitigation release must contain the
terms and conditions necessary to prevent injury to other water rights, prevent the
expansion of use of the decreed water storage right from which the protected
mitigation release is to be made, and ensure that the protected mitigation releases
are administrable by the division engineer, including, if necessary, to prevent injury
or expansion of use of the decreed water storage right from which the protected
mitigation release is to be made, terms rejecting or decreasing the proposed flow
rate of the protected mitigation releases or the qualifying stream reach. All such
decrees must also specifically identify the timing and rate of the protected
mitigation releases, the qualifying stream reach, and the flow rate that is
appropriate to preserve or improve the natural environment to a reasonable degree
within the qualifying stream reach. For protected mitigation releases that are to be
exchanged into storage in accordance with subsection (8)(c)(IV)(B) of this section,
the decree must specify that the exchange to storage be administered with a
priority date that is no earlier than the date of the approval of the fish and wildlife
mitigation and enhancement plan pursuant to section 37-60-122.2.
(V) An owner shall erect, maintain, and repair suitable and proper measuring
devices as required by section 37-84-113 and by the decree approving the
protected mitigation releases and as ordered by the state or division engineer.
Additionally, the owner shall maintain records of the quantity and rate of release of
the protected mitigation releases and the quantity and rate of diversion of the
protected mitigation releases that are rediverted for subsequent application to
beneficial use.
(g) If operation of a protected mitigation release under this subsection (8)
requires the making of physical modifications to an existing water diversion
structure within the qualifying stream reach to allow the protected mitigation
release to bypass the existing water diversion structure, the owner of the water
storage right used to make the protected mitigation release shall bear all
reasonable construction costs associated with the physical modifications and all
reasonable operational and maintenance costs incurred by the owner of the
existing water diversion structure that would not have been incurred in the absence
of the physical modifications to the structure.
(h) A determination under section 37-60-122.2 that releases of water from
new reservoir capacity will help to reasonably avoid, minimize, or mitigate the
impacts of the new reservoir capacity on fish and wildlife resources within the
qualifying stream reach is evidence of the appropriateness of a protected
mitigation release within the qualifying stream reach.
(i) A mitigation release shall not be protected or administered as a protected
mitigation release:
(I) When the amount of the existing flow in the qualifying stream reach is
such that addition of the protected mitigation release would exceed the streamflow
rate set forth in the decree to be appropriate to preserve or improve the natural
environment to a reasonable degree within the qualifying stream reach;
(II) Unless the owner is in compliance with:
(A) The measuring requirements of section 37-84-113;
(B) The terms and conditions in the decree approving the protected
mitigation release regarding the operation, maintenance, or repair of proper
measuring devices; and
(C) An order by the state or division engineer regarding the operation,
maintenance, or repair of proper measuring devices;
(III) When the owner is incapable of rediverting the protected mitigation
release at or below the downstream termination point of the qualifying stream
reach for application to a decreed beneficial use of the water storage right that is
to provide the water for the protected mitigation release;
(IV) When the released water is within the natural stream at a location
outside of the qualifying stream reach, including when the released water is
between the downstream termination point of the qualifying stream reach and the
point of rediversion; or
(V) When the owner is not otherwise in compliance with the terms of the
decree approving the protected mitigation release.
(j) This subsection (8):
(I) Does not impair or in any way affect any water court decree,
administrative authorization, or agreement that allows water to be stored, released,
and administered for environmental, piscatorial, water quality, recreational,
municipal, or other in-channel purposes, including the maintenance of dominion and
control over the water releases from a specified reservoir;
(II) Is not intended to be the exclusive means of authorizing water to be
stored, released, and administered for environmental, piscatorial, water quality,
recreational, municipal, or other in-channel purposes, including the maintenance of
dominion and control over the water released from a specific reservoir; and
(III) Does not authorize, restrict, or preclude future water rights,
appropriations, administrative authorizations, or other agreements for the purposes
listed in subsection (8)(j)(I) of this section.
Legislative History
Nearby Sections
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Cite This Page — Counsel Stack
Colorado § 37-92-102, Counsel Stack Legal Research, https://law.counselstack.com/statute/co/37-92-102.