1. The Water Course Water Law & Administration January 19, 2009 Kyle Whitaker Division of Water Resources Assistant Division Engineer, Water Division No. 5 (970) 945-5665, kyle.whitaker@state.co.uskyle.whitaker@state.co.us

2. The Hydrologic Cycle

3. 19 States & Mexico Rely on Colorado Water

6. COLORADO HISTORICAL AVERAGE ANNUAL STREAM FLOWS (acre feet) OFFICE OF THE STATE ENGINEER COLORADO DIVISION OF WATER RESOURCES Prepared by the Hydrographic Branch (2003 Revision) Historic averages obtained from USGS Water - Data Report CO - YAMPA WHITE LITTLE SNAKE ELK NO. PLATTE CACHE LA POUDRE SOUTH PLATTE NORTH FORK REPUBLICAN SOUTH FORK REPUBLICAN NO. FORK ARKANSAS NO. FORK UNCOMPAHGRE McELMO MANCOS LA PLATA ANIMAS & FLORIDA LOS PINOS PIEDRA SAN JUAN CONEJOS PURGATOIRE GUNNISON SAN MIGUEL LARAMIE COLORADO DOLORES RIO GRANDE 1,531,000 555,200 4,500,000 414,300 1,127,000 404,600 311,100 111,800 37,100 36,890 25,580 670,100 173,700 446,900 + 291,200 235,800 322,100 653,300 394,300 153,000 593,600 172,000 219,800 943,000 330,500 547,300 291,200 268,600 1,872,000 125,100 31,890 313,200 96,300 49,640 47,020 164,200 89,820 699,200 528,200 879,800 413,200 329,200 45,590 476,300 229,200 185,200 403,400 31,680 28,750 69,750 FOUNTAIN APISHAPA 18,970 HUERFANO 26,930 GRAPE 24,933 BEAR 33,760 58,146 88,051 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 3 4 7 6 5 2 1 3 4 7 505,600 279,700 2,799,000 334,400 54,760 85,540 EAST TOWARD ATLANTIC OCEAN 1,050,900 af WEST TOWARD PACIFIC OCEAN 9,189,550 af TOTAL LEAVING COLORADO 10,240,450af ROARING FORK EAGLE BLUE TOMICHI SOUTH FORK SAN JUAN - CHAMA 94,180 At Benkelman, NE

8. Water Deliveries in Colorado Agriculture 86% Municipal/Domestic 7% Recreation/Fisheries 3% Industrial/Commercial 2% Augmentation 1% Recharge 1%

9. Office of the State Engineer Division of Water Resources

10. Department of Natural Resources Agencies n Water Resources n Wildlife n Oil and Gas Conservation Commission n Geological Survey n Forestry n Water Conservation Board n State Parks n Reclamation, Mining, and Safety n State Land Board

11. Division of Water Resources Responsibilities n Water Administration n Public Safety n Ground Water Permitting n Interstate Compacts n Hydrographic Program n Public Information Services n Additional Program Activities

12. 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

14. Prior Appropriation The Colorado Doctrine Green Mountain Reservoir

16. Mark’s Gold Mine 2.0 c.f.s. Mining and Milling 1861

17. Mark’s Gold Mine 2.0 c.f.s. Mining and Milling 1861 Mesa Town 1.0 c.f.s. Municipal 1862

18. 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

19. 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

20. 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

21. 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

22. 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 1st 2nd 3rd 4th 5th

24. Water Administration

25. 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

26. 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)

27. 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.

28. 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

29. 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

30. Typical Call Colorado River Grand Ditch 11-20-1885 (Admin. No. 13108.00000)

31. Ditch A 1-1-1880 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.

32. Ditch B 1-1-1875 100 cfs Ditch A 1-1-1880 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.

33. Ditch A 1-1-1880 50 cfs Ditch C 1-1-1895 100 cfs Ditch B 1-1-1875 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?

34. Is it really that simple? What are some factors that might make the decision more difficult?

36. Plans for Augmentation and Changes of Water Rights

37. 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

38. 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.

40. Plan For Augmentation A plan to replace out of priority depletions caused by a junior water right to senior water rights. The replacements are made with another source of water. Depletions must be replaced in time, place and amount in order protect senior water rights. The application for approval of a plan for augmentation in water court allows others the opportunity to express their concerns regarding its ability to protect their water rights.

42. Water Rights Issues

43. 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.

44. Prescriptive Easement “An easement created from an open, adverse, and continuous use over a statutory period.” Black’s Law Dictionary, Seventh Edition

45. Irrigation Efficiency

46. “ You better cut the pizza in four pieces because I’m not hungry enough to eat six.” Yogi Berra - #8