§ 37-68-101 — Amended Costilla Creek compact

The general assembly hereby
ratifies the amended compact between the state of Colorado and the state of New
Mexico, designated as the Amended Costilla Creek Compact, signed in the city of
Santa Fe, state of New Mexico, on the seventh day of February, A. D. 1963, by J. E.
Whitten, commissioner for the state of Colorado, and S. E. Reynolds, commissioner
for the state of New Mexico, which said amended compact is as follows:

Amended Costilla Creek Compact

The state of Colorado and the state of New Mexico, parties signatory to this
compact (hereinafter referred to as Colorado and New Mexico, respectively, or
individually as a state, or collectively as the states), having on September 30,
1944 concluded, through their duly authorized commissioners, to-wit: Clifford H.
Stone for Colorado and Thomas M. McClure for New Mexico, a compact with
respect to the water of Costilla Creek, an interstate stream, which compact was
ratified by the states in 1945 and was approved by the congress of the United
States in 1946; and

The states, having resolved to conclude an amended compact with respect to
the waters of Costilla Creek, have designated, pursuant to the acts of their
respective legislatures and through their appropriate executive agencies, as their
commissioners:

J. E. Whitten, for Colorado

S. E. Reynolds, for New Mexico

who, after negotiations, have agreed upon these articles:

Article I

The major purposes of this compact are to provide for the equitable division
and apportionment of the use of the waters of Costilla Creek; to promote interstate
comity; to remove causes of present and future interstate controversies; to assure
the most efficient utilization of the waters of Costilla Creek; to provide for the
integrated operation of existing and prospective irrigation facilities on the stream in
the two states; to adjust the conflicting jurisdictions of the two states over
irrigation works and facilities diverting and storing waters in one state for use in
both states; to equalize the benefits of water from Costilla Creek, used for the
irrigation of contiguous lands lying on either side of the Boundary, between the
citizens and water users of one state and those of the other; and to place the
beneficial application of water diverted from Costilla Creek for irrigation by the
water users of the two states on a common basis.

The physical and other conditions peculiar to the Costilla Creek and its basin,
and the nature and location of the irrigation development and the facilities in
connection therewith, constitute the basis for this compact; and neither of the
States hereby, nor the Congress of the United States by its consent, concedes that
this compact establishes any general principle or precedent with respect to any
other interstate stream.

Article II

As used in this compact, the following names, terms and expressions are
described, defined, applied and taken to mean as in this article set forth:

(a) Costilla Creek is a tributary of the Rio Grande which rises on the west
slope of the Sangre de Cristo range in the extreme southeastern corner of Costilla
County in Colorado and flows in a general westerly direction crossing the boundary
three times above its confluence with the Rio Grande in New Mexico.

(b) The Canyon Mouth is that point on Costilla Creek in New Mexico where
the stream leaves the mountains and emerges into the San Luis Valley.

(c) The Amalia Area is that irrigated area in New Mexico above the Canyon
Mouth and below the Costilla Reservoir which is served by decreed direct flow
water rights.

(d) The Costilla-Garcia Area is that area extending from the Canyon Mouth
in New Mexico to a point in Colorado about four miles downstream from the
boundary, being a compact body of irrigated land on either side of Costilla Creek
served by decreed direct flow water rights.

(e) The Eastdale Reservoir No. 1 is that off-channel reservoir located in
Colorado in sections 7, 8 and 18, township 1 north, range 73 west, and sections 12
and 13, township 1 north, range 74 west, of the Costilla Estates survey, with a
nominal capacity of three thousand four hundred sixty-eight (3,468) acre-feet and a
present usable capacity of two thousand (2,000) acre-feet.

(f) The Eastdale Reservoir No. 2 is that off-channel reservoir located in
Colorado in sections 3, 4, 9 and 10, township 1 north, range 73 west, of the Costilla
Estates survey, with nominal capacity of three thousand forty-one (3,041) acre-feet.

(g) The Costilla Reservoir is that channel reservoir, having a nominal
capacity of fifteen thousand seven hundred (15,700) acre-feet, located in New
Mexico near the headwaters of Costilla Creek. The present usable capacity of the
reservoir is eleven thousand (11,000) acre-feet, subject to future adjustment by the
state engineer of New Mexico. The condition of Costilla Dam may be such that the
state engineer of New Mexico will not permit storage above a determined stage
except for short periods of time.

(h) The Cerro Canal is that irrigation canal which diverts water from the left
bank of Costilla Creek in New Mexico near the southwest corner of section 12,
township 1 south, range 73 west, of the Costilla Estates survey, and runs in a
northwesterly direction to the boundary near Boundary Monument No. 140.

(i) The boundary is the term used herein to describe the common boundary
line between Colorado and New Mexico.

(j) The term Costilla Reservoir System means and includes the Costilla
Reservoir and the Cerro Canal, the permits for the storage of water in Costilla
Reservoir, the twenty-four and fifty-two hundredths (24.52) cubic feet per second
of time of direct flow water rights transferred to the Cerro Canal, and the permits
for the diversion of direct flow water by the Cerro Canal as adjusted herein to
seventy-five and forty-eight hundredths (75.48) cubic feet per second of time.

(k) The term Costilla Reservoir System Safe Yield means that quantity of
usable water made available each year by the Costilla Reservoir System. The safe
yield represents the most beneficial operation of the Costilla Reservoir System
through the use, first, of the total usable portion of the yield of the twenty-four and
fifty-two hundredths (24.52) cubic feet per second of time of direct flow rights
transferred to the Cerro Canal, second, of the total usable portion of the yield of the
direct flow Cerro Canal permits, and third, of that portion of the water stored in
Costilla Reservoir required to complete such safe yield.

(l) The term usable capacity is defined and means that capacity of Costilla
Reservoir at the stage above which the state engineer of New Mexico will not
permit storage except for short periods of time.

(m) The term temporary storage is defined and means the water permitted
by the state engineer of New Mexico to be stored in Costilla Reservoir for short
periods of time above the usable capacity of that reservoir.

(n) The term additional storage facilities is defined and means storage
capacity which may be provided in either state to impound waters of Costilla Creek
and its tributaries in addition to the nominal capacity of Costilla Reservoir and the
Costilla Creek complement of the Eastdale Reservoir No. 1 capacity.

(o) The term duty of water is defined as the rate in cubic feet per second of
time at which water may be diverted at the headgate to irrigate a specified acreage
of land during the period of maximum requirement.

(p) The term surplus water is defined and means water which cannot be
stored in operating reservoirs during the storage season or water during the
irrigation season which cannot be stored in operating reservoirs and which is in
excess of the aggregate direct flow rights and permits recognized by this compact.

(q) The term irrigation season is defined and means that period of each
calendar year from May 16 to September 30, inclusive.

(r) The term storage season is defined and means that period of time
extending from October 1 of one year to May 15 of the succeeding year, inclusive.

(s) The term points of interstate delivery means and includes (1) the
Acequia Madre where it crosses the boundary; (2) the Costilla Creek where it
crosses the boundary; (3) the Cerro Canal where it reaches the boundary; and (4)
any other interstate canals which might be constructed with the approval of the
commission at the point or points where they cross the boundary.

(t) The term water company means The San Luis Power and Water
Company, a Colorado corporation, or its successor.

(u) The word commission means the Costilla Creek Compact commission
created by Article VIII of this compact for the administration thereof.

Article III

1. To accomplish the purposes of this compact, as set forth in Article I, the
following adjustments in the operation of irrigation facilities on Costilla Creek, and
in the use of water diverted, stored and regulated thereby, are made:

(a) The quantity of water delivered for use in the two states by direct flow
ditches in the Costilla-Garcia Area and by the Cerro Canal is based on a duty of
water of one cubic foot per second of time for each eighty (80) acres, to be applied
in the order of priority; provided, however, that this adjustment in each instance is
based on the acreage as determined by the court in decreeing the water rights for
the Costilla-Garcia Area, and in the case of the Cerro Canal such basis shall apply
to eight thousand (8,000) acres of land. In order to better maintain a usable head
for the diversion of water for beneficial consumptive use the adjusted maximum
diversion rate under the water right of each of the ditches supplying water for the
Costilla-Garcia Area in Colorado is not less than one cubic foot per second of time.

(b) There is transferred from certain ditches in the Costilla-Garcia Area
twenty-four and fifty-two hundredths (24.52) cubic feet per second of time of direct
flow water rights, which rights of use are held by the water company or its
successors in title, to the headgate of the Cerro Canal. The twenty-four and fifty-two hundredths (24.52) cubic feet of water per second of time hereby transferred
represents an evaluation of these rights after adjustment in the duty of water,
pursuant to subsection (a) of this Article, and includes a reduction thereof to
compensate for increased use of direct flow water which otherwise would have
been possible under these rights by this transfer.

(c) Except for the rights to store water from Costilla Creek in Eastdale
Reservoir No. 1 as hereinafter provided, all diversion and storage rights from
Costilla Creek for Eastdale Reservoirs No. 1 and No. 2 are relinquished and the
water decreed thereunder is returned to the creek for use in accordance with the
plan of integrated operation effectuated by this compact.

(d) The Cerro Canal direct flow permit shall be seventy-five and forty-eight
hundredths (75.48) cubic feet per second of time.

(e) There is transferred to and made available for the irrigation of lands in
Colorado a portion of the Costilla Reservoir complement of the Costilla Reservoir
System Safe Yield in order that the storage of water in that reservoir may be made
for the benefit of water users in both Colorado and New Mexico under the
provisions of this compact for the allocations of water and the operation of
facilities.

2. Each state grants for the benefit of the other and its water users the
rights to change the points of diversion of water from Costilla Creek, to divert water
from the stream in one state for use in the other and to store water in one state for
the irrigation of lands in the other, insofar as the exercise of such rights may be
necessary to effectuate the provisions of this Article and to comply with the terms
of this compact.

3. The water company has consented to and approved the adjustments
contained in this Article; and such consent and approval shall be evidenced in
writing and filed with the commission.

Article IV

The apportionment and allocation of the use of Costilla Creek water shall be
as follows:

(a) There is allocated for diversion from the natural flow of Costilla Creek
and its tributaries sufficient water for beneficial use on meadow and pasture lands
above Costilla Reservoir in New Mexico to the extent and in the manner now
prevailing in that area.

(b) There is allocated for diversion from the natural flow of Costilla Creek
and its tributaries thirteen and forty-two hundredths (13.42) cubic feet of water per
second of time for beneficial use on lands in the Amalia Area in New Mexico.

(c) In addition to allocations made in subsections (e), (f) and (g) of this Article,
there is allocated for diversion from the natural flow of Costilla Creek fifty and
sixty-two hundredths (50.62) cubic feet of water per second of time for Colorado
and eighty-nine and eight hundredths (89.08) cubic feet of water per second of
time for New Mexico, subject to adjustment as provided in Article V (e), and such
water shall be delivered for beneficial use in the two states in accordance with the
schedules and under the conditions set forth in Article V.

(d) There is allocated for diversion from the natural flow of Costilla Creek
sufficient water to provide each year one thousand (1,000) acre-feet of stored water
in Eastdale Reservoir No. 1, such water to be delivered as provided in Article V.

(e) There is allocated for diversion to Colorado thirty-six and five-tenths per
cent (36.5%) and to New Mexico sixty-three and five-tenths per cent (63.5%) of the
water stored by Costilla Reservoir for release therefrom for irrigation purposes
each year, subject to adjustment as provided in Article V (e) and such water shall be
delivered for beneficial use in the two states on a parity basis in accordance with
the provisions of Article V. By parity basis is meant that neither state shall enjoy a
priority of right of use.

(f) There is allocated for beneficial use in each of the states of Colorado and
New Mexico one-half of the surplus water, as defined in Article II (p), to be delivered
as provided in Article V.

(g) There is allocated for beneficial use in each of the states of Colorado and
New Mexico one-half of any water made available and usable by additional storage
facilities which may be constructed in the future.

Article V

The operation of the facilities of Costilla Creek and the delivery of water for
the irrigation of land in Colorado and New Mexico, in accordance with the
allocations made in Article IV, shall be as follows:

(a) Diversions of water for use on lands in the Amalia Area shall be made as
set forth in Article IV (b) in the order of decreed priorities in New Mexico and of
relative priority dates in the two states, subject to the right of New Mexico to
change the points of diversion and places of use of any of such water to other
points of diversion and places of use; provided, however, that the rights so
transferred shall be limited in each instance to the quantity of water actually
consumed on the lands from which the right is transferred.

(b) Deliveries to Colorado of direct flow water below the Canyon Mouth shall
be made by New Mexico in accordance with the following schedule:

Deliveries of Direct Flow Water to Colorado During Irrigation Season

Usable Incremental Points of Cumulative Remarks

Discharge Allocations Interstate Allocations

of Creek at to Colorado Delivery to Colorado

Canyon (C.F.S.) (C.F.S.)

Mouth

Gaging

Station

(C.F.S.)

(1) (2A) (2B) (3) (4) (5)

25.00 1.05 Acequia Incremental allocation is
4.2%

Madre of the usable discharge
when

usable discharge is less
than

25.00 C.F.S.

2.53 Cerro Canal Incremental allocation is
10.13%

of the usable discharge
when

usable discharge is less
than

25.00 C.F.S.

4.70 Cerro Canal 8.28 This 4.70 C.F.S. is not a
part

of the Colorado
allocation of

the direct flow water of
the

Costilla Reservoir System

and is not subject to

adjustment in the event
of

a change in the usable

capacity of Costilla
Reservoir.

Incremental allocation is

18.8% of the usable
discharge

when usable discharge is
less

than 25.00 C.F.S. This
4.70

C.F.S. allocated to
Colorado

for delivery through the
Cerro

Canal is 5.50 C.F.S. of the

original 6.55 C.F.S.
allocated

to Colorado for delivery

through the Acequia
Madre

less 0.8 C.F.S. correction
for

losses.

36.88 .38 Cerro Canal This 0.38 C.F.S. is not a
part

of the Colorado
allocation

of the direct flow water
of

the Costilla Reservoir
System

and is not subject to
adjustment

in the event of a change
in the

usable capacity of
Costilla

Reservoir. Incremental

allocation is 3.26% of the

usable discharge in
excess

of 25.38 C.F.S. and less

than 36.88 C.F.S.

4.04 Cerro Canal 12.70 Incremental allocation is

35.11% of the usable
discharge

in excess of 25.38 C.F.S.
and

less than 36.88 C.F.S.

38.62 1.00 Creek 13.70 Incremental allocation is

100% of the usable
discharge

in excess of 37.62 C.F.S.
and

less than 38.62 C.F.S.

44.76 2.24 Cerro Canal 15.94 Incremental allocation is

36.5% of the usable
discharge

in excess of 38.62 C.F.S.
and

less than 44.76 C.F.S.

50.91 6.00 Creek 21.94 Incremental allocation is

100% of the usable
discharge

in excess of 44.91 C.F.S.
and

less than 50.91 C.F.S.

56.48 .13 Cerro Canal 22.07 Incremental allocation is

11.18% of the usable
discharge

in excess of 55.35 C.F.S.
and

less than 56.48 C.F.S.

61.48 1.00 Creek 23.07 Incremental allocation is

100% of the usable
discharge

in excess of 60.48 C.F.S.
and

less than 61.48 C.F.S.

64.22 At usable creek
discharge of

64.22 C.F.S. the Cerro
Canal

direct flow permit
becomes

operative after 1,000
acre-feet

has been stored in
Eastdale

Reservoir No. 1.

139.70 27.55 Cerro Canal 50.62 Incremental allocation is

36.5% of the usable
discharge

in excess of 64.22 C.F.S.
and

less than 139.70 C.F.S.

The actual discharges of Costilla Creek at the Canyon Mouth Gaging Station
at which the various blocks of direct flow water become effective shall equal the
flows set forth in column (1) increased by the transmission losses necessary to
deliver those flows to the headgates of the respective direct flow ditches diverting
in New Mexico.

The delivery of ditch water at the boundary shall equal the allocation set
forth in columns (2a) and (2b) reduced by the transmission losses between the
headgate of the ditch and the point where the ditch crosses the boundary. The
allocations to be delivered to Colorado through the Cerro Canal represent, except
as otherwise indicated in column (5) of the table above, 36.5 percent of those
blocks of direct flow water of the Costilla Reservoir System which are subject to
adjustment as provided in subsection (e) of this article.

The provisions of article III (1)(a) shall not be applicable to the Colorado
allocation of 5.08 C.F.S. which is transferred from the Acequia Madre to the Cerro
Canal by this amendment to the Costilla Creek compact and shall not be applicable
to the 0.8 C.F.S. which is transferred from Colorado to New Mexico by this
amendment to the Costilla Creek compact.

The above table is compiled on the basis of the delivery to Colorado at the
boundary of thirty-six and five-tenths percent (36.5%) of all direct flow water of the
Costilla Reservoir System diverted by the Cerro Canal and the delivery at the
boundary of all other direct flow water allocated to Colorado, in the order of
priority, all such deliveries to be adjusted for transmission losses. In the event of
change in the usable capacity of the Costilla Reservoir, Colorado's share of all
direct flow water of the Costilla Reservoir System diverted by the Cerro Canal, to
be delivered at the boundary and adjusted for transmission losses, shall be
determined by the percentages set forth in column (4) of the table which appears in
subsection (e) of this article.

(c) During the storage season, no water shall be diverted under direct flow
rights unless there is water in excess of the demand of all operating reservoirs for
water from Costilla Creek for storage.

(d) In order to assure the most efficient utilization of the available water
supply, the filling of Eastdale Reservoir No. 1 from Costilla Creek shall be
commenced as early in the spring as possible and shall be completed as soon
thereafter as possible. The Cerro Canal or any other ditch which may be provided
for that purpose shall be used, insofar as practicable, to convey the water from the
Canyon Mouth to Eastdale Reservoir No. 1. During any season when the commission
determines that there will be no surplus water, any diversions, waste or spill from
any canal or canals supplying Eastdale Reservoir No. 1 will be charged to the
quantity of water diverted for delivery to said reservoir.

(e) The commission shall estimate each year the safe yield of Costilla
Reservoir System and its component parts as far in advance of the irrigation season
as possible, and shall review and revise such estimates from time to time as may be
necessary.

In the event the usable capacity of the Costilla Reservoir changes, the
average safe yield and the equitable division thereof between the states shall be
determined in accordance with the following table:

Usable Average

Capacity Annual Division of Safe Yield

of Costilla Safe Yield Colorado New Mexico

Reservoir (acre-feet) (acre-feet) (percent) (acre-feet) (percent)

(1) (2) (3) (4) (5) (6)

0 1,800 1,510 83.9 290 16.1

1,000 3,400 2,000 58.8 1,400 41.2

2,000 4,900 2,450 50.0 2,450 50.0

3,000 6,400 2,910 45.5 3,490 54.5

4,000 7,900 3,370 42.7 4,530 57.3

5,000 9,300 3,800 40.9 5,500 59.1

6,000 10,700 4,220 39.4 6,480 60.6

7,000 12,000 4,620 38.5 7,380 61.5

8,000 13,200 4,990 37.8 8,210 62.2

9,000 14,300 5,320 37.2 8,980 62.8

10,000 15,200 5,600 36.8 9,600 63.2

11,000 16,000 5,840 36.5 10,160 63.5

12,000 16,600 6,020 36.3 10,580 63.7

13,000 17,000 6,140 36.1 10,860 63.9

14,000 17,400 6,270 36.0 11,130 64.0

15,000 17,700 6,360 35.9 11,340 64.1

15,700 17,900 6,420 35.9 11,480 64.1

Intermediate quantities shall be computed by proportionate parts.

In the event of change in the usable capacity of the Costilla Reservoir, the
Costilla Reservoir complement of the Costilla Reservoir System Safe Yield shall be
divided between Colorado and New Mexico in accordance with the percentages
given in columns 4 and 6, respectively, of the above table.

Each state may draw from the reservoir in accordance with the allocations
made herein, up to its proportion of the Costilla Reservoir complement of the
Costilla Reservoir System Safe Yield and its proportion of temporary storage and no
more. Colorado may call for the delivery of its share thereof at any of the specified
points of interstate delivery.

Deliveries of water from Costilla Reservoir to the Canyon Mouth shall be
adjusted for transmission losses, if any, between the two points. Deliveries to
Colorado at the boundary shall be further adjusted for transmission losses from the
Canyon Mouth to the respective points of interstate delivery.

Water stored in Costilla Reservoir and not released during the current season
shall not be held over to the credit of either state but shall be apportioned when the
safe yield is subsequently determined.

(f) The Colorado apportionment of surplus water, as allocated in Article IV
(f), shall be delivered by New Mexico at such points of interstate delivery and in the
respective quantities, subject to transmission losses, requested by the Colorado
member of the commission.

(g) In the event that additional water becomes usable by the construction of
additional storage facilities, such water shall be made available to each state in
accordance with rules and regulations to be prescribed by the commission.

(h) When it appears to the commission that any part of the water allocated to
one state for use in a particular year will not be used by that state, the commission
may permit its use by the other state during that year, provided that a permanent
right to the use of such water shall not thereby be established.

Article VI

The desirability of consolidating various of the direct flow ditches serving the
Costilla-Garcia Area, which are now or which would become interstate in character
by consolidation, and diverting the water available to such ditches through a
common headgate is recognized. Should the owners of any of such ditches, or a
combination of them, desire to effectuate a consolidation and provide for a common
headgate diversion, application therefor shall be made to the commission which,
after review of the plans submitted, may grant permission to make such
consolidation.

Article VII

The commission shall cause to be maintained and operated a streamgaging-station, equipped with an automatic water-stage recorder, at each of the following
points, to-wit:

(a) On Costilla Creek immediately below Costilla Reservoir.

(b) On Costilla Creek at or near the Canyon Mouth above the headgate of
Cerro Canal and below the Amalia Area.

(c) On Costilla Creek at or near the boundary.

(d) On the Cerro Canal immediately below its headgate.

(e) On the Cerro Canal at or near the boundary.

(f) On the intake from Costilla Creek to the Eastdale Reservoir No. 1,
immediately above the point where the intake discharges into the reservoir.

(g) On the Acequia Madre immediately below its headgate.

(h) On the Acequia Madre at the boundary.

(i) Similar gaging stations shall be maintained and operated at such other
points as may be necessary in the discretion of the commission for the securing of
records required for the carrying out of the provisions of the compact.

Such gaging stations shall be equipped, maintained, and operated by the
commission directly or in cooperation with an appropriate federal or state agency,
and the equipment, method, and frequency of measurement at such stations shall
be such as to produce reliable records at all times.

Article VIII

The two states shall administer this compact through the official in each
state who is now or may hereafter be charged with the duty of administering the
public water supplies, and such officials shall constitute the Costilla Creek
Compact Commission. In addition to the powers and duties hereinbefore specifically
conferred upon such commission, the commission shall collect and correlate
factual data and maintain records having a bearing upon the administration of this
compact. In connection therewith, the commission may employ such engineering
and other assistance as may be reasonably necessary within the limits of funds
provided for that purpose by the states. The commission may, by unanimous action,
adopt rules and regulations consistent with the provisions of this compact to
govern its proceedings. The salaries and expenses of the members of the
commission shall be paid by their respective states. Other expenses incident to the
administration of the compact, including the employment of engineering or other
assistance and the establishment and maintenance of compact gaging stations, not
borne by the United States shall be assumed equally by the two states and paid
directly to the commission upon vouchers submitted for that purpose.

The United States geological survey, or whatever federal agency may
succeed to the functions and duties of that agency, shall collaborate with the
commission in the correlation and publication of water facts necessary for the
proper administration of this compact.

Article IX

This amended compact shall become operative when ratified by the
legislatures of the signatory states and consented to by the Congress of the United
States; provided, that, except as changed herein, the provisions, terms, conditions
and obligations of the Costilla Creek Compact executed on September 30, 1944,
continue in full force and effect.

IN WITNESS WHEREOF, the commissioners have signed this compact in
triplicate original, one copy of which shall be deposited in the archives of the
department of state of the United States of America, and one copy of which shall
be forwarded to the governor of each of the signatory states.

Done in the city of Santa Fe, New Mexico, on the 7th day of February, in the
year of our Lord, one thousand nine hundred and sixty-three.

(Signed) J. E. Whitten,

Commissioner for Colorado.

(Signed) S. E. Reynolds,

Commissioner for New Mexico.

Legislative History

Source: L. 45: p. 278, � 1. CSA: C. 90, � 51(1). CRS 53: � 148-7-1. L. 63: p. 982, � 1. C.R.S. 1963: � 149-7-1.