Re-use of Foreign Waters
| Publication year | 1978 |
| Pages | 522 |
| Citation | Vol. 7 No. 4 Pg. 522 |
1978, April, Pg. 522. Re-Use of Foreign Waters
Can there still be an argument between the relative rights of appropriators of the basin into which water is imported and the developer of those waters? Did not the Colorado Supreme Court definitively pronounce that the developer "(1) may re-use, (2) may make successive use of and (3) after use may make disposition of imported water"?(fn1) If the importer has these rights, which rights could be left for others?
Actually, notwithstanding this rather definitive statement, the Court left us with at least one vital and unanswered question:
Where, for many years, an importer of water has, after its use, discharged the water not consumed by its use into the natural streams of the state from whence it has been appropriated by others, may the importer thereafter recapture it from the stream?
The Court artfully dodged this question and we return later to admire its footwork. But before we attempt to analyze the case, we should restate some basic principles which, if overlooked, may cause us to misapprehend the point of this and other decisions.
The law almost universally concedes that one who imports foreign waters into a basin, and who has a concurrent plan to use it and re-use it, or to dispose of the excess after his use, may do so.(fn2)
Such an importer may make his succession of uses by retaining the water in his actual possession, on his own land; or, if he chooses, he may use the channel of the stream of the basin into which the water is imported as a carrier for his water, if such is part of his original plan. In either event, appropriators in the receiving basin have no rights whatever as against him.(fn3)
These are, however, the unusual situations. More commonly, an importer has used the water but once, and after such use, has allowed the water to seep away or escape or has discharged the water into the natural streams of the state, not pursuant to a plan to make successive use, but simply because there is nothing else to do with the water except to get rid of it. As this course of conduct continues for many years, persons downstream will initiate their appropriations in the not unnatural expectation that such discharges will continue, and the water appropriated by them in one year will be available in the next. It is the relationship and conflicts between these appropriators, and the importer of water, which was not decided in Denver v. Fulton,(fn4) and which should be explored.
The impropriety of a succession of uses of waters actually tributary to a
stream was long ago decided by the Colorado Supreme Court:(fn5)
It is elementary that the waters of the public streams of this state belong to the people, and that appropriators acquire only a right of use. It is also settled law that an appropriator is limited in his use of water to his actual needs. He must not waste it, and if there is a surplus remaining after use, it must be returned to the stream whence it came.(fn6)
This is good law and its purpose is obvious. Decrees for the use of water on any stream of Colorado's eastern slope exceed the available supply of water. The quantities of water diverted from these streams exceed their natural supply; and this is because the return flow waters are captured and re-used by the appropriators. The waters are not used just once, but many times. Estimates are that each drop that reaches the river is used three to five times between the mountains and the Colorado state line; but in any event, it is clear that return flows constitute a major source of supply.
To allow the user, who has contributed to this supply, to withdraw it suddenly would obviously upset the regimen of the stream to the prejudice of those water users who based their appropriations upon its continuance.
The dispute arises over to what extent this rule of law should be applicable to foreign waters. If there are obvious differences in the rule to be applied to a different source of supply, there are also similar equities of result to be considered. The conflicting views of the importer and the appropriator of the basin into which the water is imported can be summarized as follows:
The Importer: Since the water is not naturally a part of the stream, appropriators on the stream have no right to rely on its continued existence.
The Appropriator: Discharge of return flow and waste water for decades, without any attempt at re-use, should allow reliance upon its continuance.
The Importer: Since no one can require the continued importation of water, and since discontinuance would end the flow into the basin, any other act, such as successive use and complete consumption, is permitted.
The Appropriator: Compelling importation is not the question; but that if the water had been imported and discharged for decades, can the importer now expand his use to the detriment of those who have based their own appropriations on the expectation of the increased flow?
The Importer: Importers should re-use water to the maximum possible extent so as to minimize the amount of water removed from the foreign basin.
The Appropriator: This is a good policy but applicable only when the re-use plan is implemented at the time of the original importation. When no re-use has occurred for decades, we have to consider the effects of the sudden diminution in flows in the streams of the importing basin. The water is going to be re-used by someone; the social goal of re-use will be equally served whether or not the re-use is by the importer or his assigns or by an appropriator.
The Importer: In any event, a re-use or disposition of foreign water is permitted so long as the importer has "dominion"(fn7) over it.
The Appropriator: If "dominion" means physical possession, the concurrent re-use is allowed. If "dominion" means some vague intent, without physical ability to consummate it, it is a semantic argument only. Further, an intent not consummated for decades should not be given effect to the injury of persons who made their appropriations knowing nothing of it.
The relative equities of these views, in Denver v. Fulton, could be weighed in
the balance of three distinct factual situations.
The evidence showed that Denver's transmountain water came from three sources.
1. Since 1936, Denver had captured and diverted waters of the Fraser to the South Platte Basin. After use by Denver, the nonconsumed waters were discharged as effluent into the South Platte River.
2. In 1940, and thereafter, Denver diverted water of the Williams Fork into the South Platte Basin. After Denver's use, the excess waters were discharged as effluent into the South Platte River.
3. In about 1964, Denver diverted waters of the Blue River into the South Platte Basin; and the waters after use were discharged as effluent into the South Platte River. These latter waters, and only the latter waters, were the subject of a decree of the Federal District Court for the State of Colorado, which required Denver to make a succession of uses of such waters if that were practically feasible.
The evidence further showed that no exchange, re-use, or successive use of the waters had previously been attempted by Denver. After Denver had made its first use of the water, it did not attempt to hold it, but discharged it into the South Platte Basin. It did this, not pursuant to any plan of successive use, but only to get rid of it. The only exception was that in 1967 a pumping station was constructed to pump the water into the Burlington Canal. This was done by agreement with the ditch company, and its purpose was to permit the Burlington Canal to exercise its rights under its decrees on the South Platte River, Denver having moved its sewage plant to a point below the Burlington Ditch, thus making it impossible for the Burlington Ditch to continue to divert the sewage effluent by gravity.
In other words, the effect of the pumping was to recognize the right of the Burlington Ditch to divert the sewage effluent after Denver's use, not as a successive use under agreement with Denver, but under Burlington's decrees on the South Platte River itself.(fn8)
The evidence showed that subsequent to the date of the first importation from each course, adjudication proceedings
were instituted and final or conditional decrees awarded for appropriations of water downstream from Denver. The inference from this evidence, of course, was that such subsequent appropriators had made their appropriations in reliance upon the river conditions as they then existed, including the increased flows due to the transmountain diversions and the resulting waste flows. The...
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