the water course water law & administration january 19, 2009 kyle whitaker division of water...
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The Water CourseWater Law & Administration
January 19, 2009
Kyle Whitaker
Division of Water Resources
Assistant Division Engineer, Water Division No. 5
(970) 945-5665, [email protected]
The Hydrologic Cycle
19 States & Mexico Rely on Colorado 19 States & Mexico Rely on Colorado WaterWater
COLORADOHISTORICAL AVERAGE ANNUAL STREAM FLOWS
(acre feet)
OFFICE OF THE STATE ENGINEERCOLORADO DIVISION OF WATER RESOURCES
Prepared by the Hydrographic Branch (2003 Revision)Historic averages obtained from USGS Water- Data Report CO-
YAMPA
WHITE
LITTL
E SNA
KE
ELK
NO
. PLA
TTE
CACHE LA POUDRE
SOUTH PLATTE
NORTH FORKREPUBLICAN
SOUTH FORK REPUBLICAN
NO. FORK
ARKANSAS
NO. FORK
UNCOM
PAHGRE
McELMO
MANCOS LA P
LATA
ANIM
AS &
FLO
RID
ALO
S PI
NO
SPI
EDRA
SAN JU
AN CONEJOS
PURGATO
IRE
GUNNISON
SAN MIGUELLARAM
IE
COLORADO
DO
LORES
RIO GRANDE
1,531,000
555,200
4,500,000
414,300
1,127,000
404,600
311,100111,800
37,100
36,890 25,580670,100 173,700 446,900
+291,200
235,800
322,100
653,300394,300
153,000
593,600
172,000
219,800
943,000
330,500547,300
291,200
268,600
1,872,000
125,100
31,890
313,200 96,300
49,640
47,020
164,20089,820
699,200528,200
879,800
413,200
329,200
45,590476,300
229,200
185,200
403,400
31,680
28,750
69,750
FOU
NTA
IN
APISHAPA18,970HUERFANO
26,930GRA
PE
24,933
BEAR33,760
58,14688,051
63,038
126,800
270,500
204,400
404,400
875,600
265,800 99,500
634,500
ST. VRAIN
BOULDER
158,800
50,050
PICEANCE
27,700
152,600
6
5
2
1
34
7
6
5
2
1
34
7
505,600
279,700
2,799,000
334,400
54,760 85,540
EAST
TO
WAR
D A
TLAN
TIC
OCE
AN 1
,050
,900
af
WES
T TO
WAR
D P
ACIF
IC O
CEAN
9,1
89,5
50
af
TOTAL LEAVING COLORADO 10,240,450 af
ROARINGFORK
EAGLE
BLUE
TOMICHI
SOUTH
FORK
SAN JUAN - CHAMA
94,180
At Benkelman, NE
1
2
3
7
4
5
6
GREELEY
DENVER
PUEBLO
ALAMOSA
DURANGO
MONTROSE
DELTA
GRANDJ UNCTION
GLENWOODSPRINGS
STEAMBOATSPRINGS
ARKANSAS RIVER
RIO GRANDE
DO
LOR
ES
RIV
ER
COLORADO RIVER
YAMPA RIVER
SOUTH
PLAT
TE
RIVER
5
10
78
12
15
1617
1819202122
23
24
25
2829
30
3132 33
34
TO SOUTH PLATTE BASIN1. WILSON SUPPLY DITCH2. DEADMAN DITCH3. BOB CREEK DITCH4. COLUMBINE DITCH5. LARAMIE POUDRE TUNNEL6. SKYLINE DITCH7. CAMERON PASS DITCH8. MICHIGAN DITCH9. GRAND RIVER DITCH
10. ALVA B. ADAMS TUNNEL11. MOFFAT WATER TUNNEL12. BERTHOUD PASS DITCH13. STRAIGHT CREEK TUNNEL14. VIDLER TUNNEL 15. HAROLD D. ROBERTS TUNNEL16. BOREAS PASS DITCH17. HOOSIER PASS TUNNEL
TO ARKANSAS BASIN18. COLUMBINE DITCH19. EWING DITCH20. WURTZ DITCH21. HOMESTAKE TUNNEL22. CHARLES H. BOUSTEAD TUNNEL23. BUSK-IVANHOE TUNNEL24. TWIN LAKES TUNNEL25. LARKSPUR DITCH26. HUDSON BRANCH DITCH27. MEDANO PASS DITCH
TO RIO GRANDE BASIN28. TARBELL DITCH29. TABOR DITCH30. WEMINUCHE PASS DITCH31. PINE RIVER-WEMINUCHE PASS DITCH32. WILLIAMS CREEK-SQUAW PASS DITCH33. DON LA FONT DITCHES 1 & 234. TREASURE PASS DITCH35. SAN J UAN-CHAMA PROJ ECT
TRANSMOUNTAIN DIVERSIONSOFFICE OF THE STATE ENGINEER
GUNNISON
RIVE
R
12
41
4243
TO COLORADO RIVER BASIN40. DIVIDE HIGHLINE FEEDER DITCH41. SARVIS DITCH42. STILLWATER DITCH43. DOME DITCH44. REDLANDS POWER CANAL
6
9
11
14
34
13
35
2627
363738
40
39
TO GUNNISON RIVER BASIN36. RED MOUNTAIN DITCH37. CARBON LAKE DITCH38. MINERAL POINT DITCH39. LEON TUNNEL
Updated J une 2005
44
Water Deliveries in Colorado
• Agriculture86%
• Municipal/Domestic 7%• Recreation/Fisheries 3%• Industrial/Commercial
2%• Augmentation 1%• Recharge
1%
Office of the State EngineerDivision of Water Resources
Department of Natural Resources Department of Natural Resources AgenciesAgencies
Water ResourcesWater Resources WildlifeWildlife Oil and Gas Oil and Gas
Conservation Conservation CommissionCommission
Geological Geological SurveySurvey
ForestryForestry
Water Water Conservation Conservation BoardBoard
State ParksState Parks Reclamation, Reclamation,
Mining, and Mining, and SafetySafety
State Land BoardState Land Board
Division of Water Resources Division of Water Resources ResponsibilitiesResponsibilities
Water AdministrationWater Administration Public SafetyPublic Safety Ground Water PermittingGround Water Permitting Interstate CompactsInterstate Compacts Hydrographic ProgramHydrographic Program Public Information ServicesPublic Information Services Additional Program ActivitiesAdditional Program Activities
Key Statutes DWR Operates Under
• Title 37, Article 92 Water Rights Determination and Administration (Water Courts, Water Right Decree Process, Substitute Water Supply Plans, Tabulation, Administration, Exempt Well Permitting)
• Title 37, Article 90 Well Permitting • Title 37, Article 80 State Engineer Authority and
Responsibilities • Title 37, Article 84 Responsibility of User of Water for
Maintenance of Diversion Structures, Ditches and Measuring Flumes
• Title 37, Article 87 Review of Plans and Specifications for Reservoir and Determination of Safe Storage Levels
Prior AppropriationThe Colorado Doctrine
Green Mountain Reservoir
Mark’s Gold Mine
2.0 c.f.s.
Mining and Milling
1861
Mark’s Gold Mine
2.0 c.f.s.
Mining and Milling
1861
Mesa Town
1.0 c.f.s.
Municipal
1862
Mark’s Gold Mine
2.0 c.f.s.
Mining and Milling
1861
Mesa Town
1.0 c.f.s.
Municipal
1862
Max’s Power Plant
5.0 c.f.s
Industrial
1865
Mark’s Gold Mine
2.0 c.f.s.
Mining and Milling
1861
Mesa Town
1.0 c.f.s.
Municipal
1862
Max’s Power Plant
5.0 c.f.s
Industrial
1865
Fruit Town
0.5 c.f.s.
Municipal
1868
Mark’s Gold Mine
2.0 c.f.s.
Mining and Milling
1861
Mesa Town
1.0 c.f.s.
Municipal
1862
Max’s Power Plant
5.0 c.f.s
Industrial
1865
Fruit Town
0.5 c.f.s.
Municipal
1868
Hannah’s Brewery
.033 c.f.s.
Entertainment
1869
Mark’s Gold Mine
2.0 c.f.s.
Mining and Milling
1861
Mesa Town
1.0 c.f.s.
Municipal
1862
Max’s Power Plant
5.0 c.f.s
Industrial
1865
Fruit Town
0.5 c.f.s.
Municipal
1868
Hannah’s Brewery
.033 c.f.s.
Entertainment
1869
Mark’s Gold Mine
2.0 c.f.s.
Mining and Milling
1861
Mesa Town
1.0 c.f.s.
Municipal
1862
Max’s Power Plant
5.0 c.f.s
Industrial
1865
Fruit Town
0.5 c.f.s.
Municipal
1868
Hannah’s Brewery
.033 c.f.s.
Entertainment
1869
1st2nd
3rd
4th5th
Water Administration
Water Commissioner Responsibilities
• Day to Day Administration– Setting the Call Based on Supply and Demand– Assuring Diversions In Priority For Decreed Uses Without Waste– Delivery of Reservoir Releases and Other Water After Assessing Transit
Losses– Assuring Diversions Are Measured– Assuring Other Decree Conditions in Augmentation and Change Cases
Are Complied With• Review of Accounting and Maintenance of Diversion Records
Statutory Provisions Commonly Used for Water Administration
• C.R.S. 37-92-501 General Jurisdiction to Administer Water• C.R.S. 37-92-502 Daily Administration
– (2) order total or partial discontinuance of use to extent water not necessary for beneficial use or needed by senior user (see also C.R.S. 37-84-116 – control of headgates)
– (2) won’t order discontinuance unless makes water available at the place of seniors need.
– (2) Stop discontinuance if water does not become available to senior priorities in time and place of need
– (5)(a) Authority to order installation of measuring devices (also C.R.S. 37-84-112, 37-84-114 – SEO rates flumes)
– (6) staff may enter private property• C.R.S. 37-84-117 (5) release of water to account for
evaporation from on-stream reservoirs• C.R.S. 37-80-120 Exchanges (several other references)
Definition of Terms for a Call
• Free River – the supply of water in the river exceeds the demand for water by all decreed water users
• Call – the demand for water by a user • Call Recognized and Administered by Division of Water
Resources – the determination by the Water Commissioner of the most junior right that may divert when the supply of water in the river is less than the demand on the river by all decreed water users (also known as “the Call”) Note: These definitions are not found in statute, but are working definitions. The primary statute that water administration occurs under is 37-92-502 C.R.S.
How Does A Commissioner Set The Valid Call For A Portion Of The River?
• Determines river conditions (supply) from stream gaging stations
• Determines the demand (calls) by various water right holders from water user contacts
• Sets the valid call based on a comparison of river conditions (supply) and demand (calls) and knowledge of water gains or losses and water travel times between points on the river
Conditions Commissioners Review Prior to Placing A Valid Call for a User
• User must be in priority• Water diverted by user must be used in accordance with the
decree terms and conditions• Water cannot be wasted • User must have an acceptable headgate and an accurate
measuring device• User must be taking all the water that is available at their
headgate• Must determine whether user can get the water they are
asking for without setting a call• Must determine whether user will get the water they are
calling for by curtailing upstream junior rights
Typical Call
Colorado River
Grand Ditch 11-20-1885
(Admin. No. 13108.00000)
Ditch A1-1-1880 50 cfs Ditch B
1-1-1875 100 cfs
River
Example: Ditch A is taking 50 cfs. Ditch B owner calls the commissioner and is 70 cfs short. The call becomes Ditch B with a 1-1-1875 call. Ditch A is completely curtailed.
Ditch B1-1-1875 100 cfs
Ditch A1-1-1880 50 cfs
River
Example: Ditch A is taking 50 cfs. Ditch B owner calls the water commissioner and is 30 cfs short. The call becomes Ditch A with water being bypassed to Ditch B with a 1-1-1880 priority date. Assuming no inflow or outflow in the interim reach, Ditch A is curtailed to 20 cfs.
Ditch A1-1-1880 50 cfs
Ditch C1-1-1895 100 cfs
Ditch B1-1-1875 200 cfs
Tributary
River
Example: Ditch A is taking 50 cfs and Ditch C 100 cfs. Ditch B owner calls the commissioner and is 120 cfs short.
You are the commissioner, what do you do?
Is it really that simple?
What are some factors that might make the decision more difficult?
Plans for Augmentation and Changes of Water Rights
Change of Water Right
• Change in type, place, or time of use• Change in point of diversion• Change from direct application to storage and
subsequent application• Change in point of storage
Change of Water Right
Generally, a change of an irrigation right to municipal purposes. This may involve new or alternate points of diversion, but not always.
Plan For Augmentation
A plan to replace out of priority depletionscaused by a junior water right to senior waterrights. The replacements are made with anothersource of water. Depletions must be replaced intime, place and amount in order protect seniorwater rights. The application for approval of aplan for augmentation in water court allowsothers the opportunity to express their concernsregarding its ability to protect their water rights.
Water Rights Issues
CRS 37-86-102 Right-of-way through other lands.
Any person owning a water right or conditional water right shall be entitled to a right-of-way
through the lands which lie between the point of diversion and point of use or proposed use for the purpose of transporting water for beneficial use
in accordance with said water right or conditional water right.
Prescriptive Easement
“An easement created from an open, adverse, and continuous use over a statutory period.”
Black’s Law Dictionary, Seventh Edition
Irrigation Efficiency
“You better cut the pizza in four pieces because I’m not hungry enough to eat six.”
Yogi Berra - #8