Conditions in a Water Rights Augmentation Plan or Change Case
| Publication year | 1984 |
| Pages | 2039 |
1984, November, Pg. 2039. Conditions in a Water Rights Augmentation Plan or Change Case
The ultimate question in an augmentation plan or change of water rights case is what conditions must be imposed to prevent injury to owners of other water rights.(fn1) The Colorado Supreme Court's recent decisions identify a number of conditions which should be applied in most cases. Necessarily, injury is determined by the peculiarities of priorities, flows and the natural constraints in a specific stream system. However, the basic types of conditions imposed in the water courts are easily categorized.
Decreed conditions must prevent enlargement of quantity and time of consumptive use, prevent enlargement of the rate, quantity and time of diversions, establish mechanisms for measurement of future use and provide for administration and enforcement of the conditions imposed. Also, prior conditions restricting the right must be maintained.
The right to change an existing water right has been declared an attribute of the property ownership of a water right since the early days of Colorado law. A plan for augmentation was defined in the Water Right Determination and Administration Act of 1969 ("1969 Act"). In contemporary Colorado water cases, a plan for augmentation is often a simple change of water right, but may include the use of nontributary well water or transmountain imported water to replace consumptive use.
Changing a water right by self-help has been repeatedly disapproved. The statutory change procedures must be followed. Informal attempts to change points of diversion or alter stream flows and proposals to rely upon historic diversions made at undecreed points have been repeatedly disapproved.(fn2)
One popular argument in change cases has been that substantial benefits to other appropriators or even to the applicant outweigh any injury to others that will occur. The argument has met a varied reception from the Colorado Supreme Court. CRS § 37-92-305 requires the absence of injurious effect. Greater benefit to the applicant does not outweigh injury to the junior.(fn3) However, changes resulting in additional return flows benefiting other users may outweigh de minimus injury.(fn4)
Some of the conditions supported by recent case law in water right changes are outlined below.
While cases predating the 1969 Act assert that diversions may not be enlarged, the current statute and cases focus on maintenance of return flows. Again and again in recent years, the Supreme Court has required the continuation of return flow and careful consumptive use calculations.(fn5)
Maintenance of measured return flows at a point downstream has been required.(fn6) While there is a right to return flow, there is no right to maintenance of the point of sewer return or wastewater return.(fn7) Also, there is no right to return flows from imported or transmountain water. However, return flows, if any, must be maintained in the original watershed of the transmountain water.(fn8)
In order to maintain the regimen of the stream, conditions must insure that return flows reach the river consistent with the historic timing of prior return flows. This is particularly important where gross diversions will be enlarged. In augmentation plans, non-irrigation-season releases from a storage reservoir have been required. Augmentation plans since 1976 have included detailed calculations of future use. Typically, the number of residential units per unit occupancy, days of occupancy, estimated gross consumption and a consumptive-use percentage based on sewage disposal are made...
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