Series: Colorado Water Law Basics #20 - What is a Futile Call?

Normally, when there is not enough water in an administered stream to satisfy all decreed water users’ rights, a “call” is placed on the stream. At these times, under the Doctrine of Prior Appropriation, a “call” is placed with the Water Commissioner, whereby the Commissioner ceases all upstream junior diversions to the extent that the most senior rights are satisfied with the water made available from the curtailment of upstream junior diversions. However, there are times and under certain hydrologic conditions that curtailing a junior water right will not result in the senior calling right being satisfied in a reasonable period of time. Under these conditions, a call can be set aside by the Division Engineer, which has the effect of lifting the call if the diversion curtailed does not cause water to become available to senior priorities under the senior call. In this case, the call is “futile” because it won’t result in the water that would be curtailed from a junior diverter reaching the senior calling right.

The statutory authority to declare a futile call is found in Section 37-92-502(2)(a), C.R.S., which states that “Each division engineer shall order the total or partial discontinuance of any diversion in his division…to the extent that the water being diverted is required by persons entitled to use water under water rights having senior priorities, but no such discontinuance shall be ordered unless the diversion is causing or will cause material injury to such water rights having senior priorities.” This statute goes on to state that “In the event that a discontinuance has been ordered…and nevertheless such discontinuance does not cause water to become available to such senior priorities at the time and place of their need, then such discontinuance order shall be rescinded.” In other words, if the curtailed water would not reach the senior calling right in a reasonable time, then there is no material injury to the senior right because no water would actually be made available, and a futile call is appropriate.

When a futile call is declared, there are a number of provisions that need to be followed, based on the State Engineer’s Office (“SEO”) Written Instruction 2015-003. The continued diversion by the upstream junior appropriator is still considered an out-of-priority diversion, albeit a lawful diversion. Regardless of whether the junior diversion that is allowed to continue is for direct-flow or storage, the amount of the diversion has to be credited to any applicable volumetric limits for that decreed water right and must comply with decree provisions. If the volumetric limit is reached, subsequent diversions need not comply with decree provisions.

An interesting aspect of the SEO’s futile call policy is that a water user may use water during a futile call determination for an undecreed use as long as the water user will put the water to beneficial use. Undecreed uses need not comply with terms of a decreed water right. Therefore, this provides additional flexibility to the use of water under a futile call.

If a junior tributary well diversion is allowed to continue to divert under a futile call and has an adjudicated augmentation plan, any lagged depletions that accrue during the futile call are not owed to the river. However, lagged depletions after the futile call is lifted would still be owed to the river. If a junior storage right is allowed to continue to divert under a futile call, the diversion under the decreed water right has to be accounted for as a “paper fill” [see 9/8/2020 LWS blog].

The evaluation of when it is appropriate to declare a futile call can be a complicated process, involving the current flow rate in the stream from the calling point to where upstream flow cannot be reliably transmitted downstream to the calling right, channel gain/loss characteristics in that reach related to channel sediments, and/or local alluvial groundwater levels in that reach that could affect the ability of the stream to transmit flows reliably down the channel over time. We will explore these issues in a subsequent blog.

Just another nuance of Colorado water rights! If you have any needs related to evaluating stream channel conditions, monitoring of alluvial groundwater levels, gain/loss studies, allowed operations of water rights, or any water rights issues, please give LWS a call (303-350-4090) or an email.

Bruce Lytle, bruce@lytlewater.com

Chris Fehn, chris@lytlewater.com

Ben Bader, ben@lytlewater.com

Anna Elgqvist, anna@lytlewater.com