Chapter 12 - § 12.10 • CONDEMNATION OF WATER STORAGE SITES

• Jurisdiction: Colorado

§ 12.10 • CONDEMNATION OF WATER STORAGE SITES

Private property can be taken by the state's power of eminent domain to obtain a site to locate a water reservoir facility.⁷⁹

Clever commentators, like Mark Twain, have observed that "no man's life, liberty or property, is secure when the legislature is in session." This is even true of water rights, including storage rights. It has been recognized for over a century by Colorado's appellate courts that Article II, Sections 14 and 15 of the Colorado Constitution protect a water right owner's vested interest and right to just compensation from a taking or condemnation of such right.⁸⁰ This author is not aware of any municipality or water district that has tried to condemn a storage right other than the City of Thornton in Stanley Lake, which is explained in Jacobucci v. District Court.⁸¹ This unsuccessful attempt was met by a complicated statute designed to thwart any future attempts of the next session, but was held to be unconstitutional in that application;⁸² however, that statute is still on the books.⁸³

Even though municipalities have been quite reluctant to condemn water rights, they have not hesitated to condemn reclaimed gravel pits, see discussion at § 12.11.1, that have been converted to water reservoirs.

In Colorado, reservoir sites may be taken not only by public and quasi-public entities but also by private persons.⁸⁴ Also, C.R.S. § 37-87-101(1) provides in pertinent portion that:

[a]cquisition of those interests in real property reasonably necessary for the construction, maintenance, or operation of any water storage reservoir, together with inlet, outlet, or spillway structures or other facilities necessary to make such reservoir effective to accomplish the beneficial use or uses of water stored or to be stored therein, may be secured under the laws of eminent domain.

Private condemnations can be very important in establishing a new conditional water storage right for a reservoir site if the applicant does not own the underlying land. In FWS Land & Cattle Co. v. State Division of Wildlife,⁸⁵ the supreme court affirmed the water court's denial of such an application because the project sponsor could not acquire the necessary property from a couple of state agencies and therefore failed the "can and will" test discussed in § 12.7 pursuant to C.R.S. § 37-92-305(9). A similar result was reached in Town of Parker v. Colorado Division of Parks & Outdoor Recreation,⁸⁶ where both a home-rule...