Series: Colorado Water Law Basics #2 - Why is the 1969 Water Rights Determination Act an Important Landmark in Colorado Water Rights?
Why is the 1969 Water Rights Determination Act an important landmark in Colorado water rights?
The basis of virtually all of the procedural ways we deal with water rights today has its origin in the 1969 Water Rights Determination and Administration Act (“1969 Act”). While the Colorado Doctrine of Prior Appropriation was adopted in 1872, District Courts were responsible for the adjudication of water rights until 1969, and those adjudications were principally related to direct flow ditch rights and reservoir storage rights. The procedures and expansion of the types of water rights to be adjudicated changed dramatically with the 1969 Act and is the foundation of much of the way water rights are decreed today. The primary components of the 1969 Act include:
Established the Water Court system;
Established the resumé process that publishes all Water Court applications so water rights holders are aware of new water rights applications;
Required tributary (aka alluvial) wells to be part of the priority system;
Established augmentation plans to offset depletions from alluvial well pumping by replacing the depletions to the affected stream with senior rights;
Established rulemaking and enforcement authority with the State Engineer; and
Developed explicit procedures for Water Court applications, objections to applications, and procedures related to adjudicating water rights, changes of use, and augmentation plans.
One of the major components of the 1969 Act was the establishment of the Water Court system. The System was developed to have a Water Court in each major drainage basin in the state (“Water Division”). The Water Courts in each Water Division are:
Within each Water Division there is a Division Engineer that is responsible for the administration of water rights in that division. Each Water Division is sub-divided into a number of Water Districts (by tributary sub-drainage basins within the primary stream system) where Water Commissioners, who report to the Division Engineer, administer water rights on a daily basis. An example of how a basin is split into Water Districts is shown in the map of the Arkansas Basin (below).
Water Districts within the Arkansas River Basin (Division 2).
This administrative and legal process system established in the 1969 Act is still the procedural arena we operate in today.
HOW DID THE PROCEDURAL ASPECTS OF THE DOCTRINE OF PRIOR APPROPRIATION CHANGE WITH THE 1969 ACT?
Prior to 1969 alluvial groundwater that was hydraulically associated with stream systems, as well as other shallow groundwater that was recharged annually through the hydrologic cycle, was not regulated. With the 1969 Act it was legally recognized that shallow wells, when pumped, affect the flow in streams that potentially deplete stream flow and can injure senior surface water rights. Alluvial well pumping can affect stream flow; however, the impacts to stream flow are delayed because of the movement of groundwater through porous media to the stream. Therefore, strictly using the prior appropriation doctrine that shut down surface diversions, which stops all stream depletions, when there is insufficient water is not adequate for groundwater pumping; groundwater pumping does not affect stream flows instantaneously. The 1969 Act developed the concept of an “augmentation plan,” which requires a tributary groundwater user to be able to provide a means to offset the delayed, or “lagged,” depletions to the stream since simply shutting down the well when there is a call is not adequate to protect senior surface water rights. This requires a groundwater user to have a reliable alternate water supply that can be input to the stream to offset groundwater depletions. The means to evaluate the timing and amount of stream depletions from groundwater pumping is typically accomplished by using the Glover equation of the Alluvial Water Accounting System (AWAS) model developed by Colorado State University.
Other procedures that are now common to those of us that provided technical assistance to attorneys in Water Court cases are the resumé process for publishing Water Court applications and the associated process of objecting to applications through a Statement of Opposition. The 1969 Act also provided guidelines for change of use cases.
LWS personnel have been involved in all types of Water Court cases over the years, including surface water direct diversions, surface water storage rights, tributary and nontributary groundwater rights, appropriative rights of exchange, and augmentation plans. We would be happy to assist with any water rights issues and we can be reached at 303-350-4090, or email us at any of the addresses shown below.
Bruce Lytle, P.E. bruce@lytlewater.com
Chris Fehn, P.E., P.G. chris@lytlewater.com
Ben Bader ben@lytlewater.com
Anna Elgqvist anna@lytlewater.com
