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Law Offices of Ronald W. Rutz
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August 27, 2002: A Compilation of Water Law Questions

As might be expected, I have been awash with water law questions this summer. The following are just a small sampling of the queries with my very truncated answers. Sorry.

Q: Why do they want to shut down irrigation wells?

A: The best way to understand the interplay between surface water and ground water is to think in terms of one sheet of water, whether above or below ground. If taking water from any part will affect the remaining sheet of water, the priority system sets up who has superior rights to use the water making up the sheet. Since wells were normally used later in time than most surface diverters, wells can be shut off if water users higher up the priority listing can show that they otherwise will not be getting their water.

Q: But what if crops will die if the wells are shut down?

A: It might sound hard-hearted but according to the priority water use system, if the water user does not have the legal right to the water, the results should not be considered, as would be the case in the riparian system. Also remember, at least in theory, the other side of the coin is that the water user with superior rights cannot finish his or her crops and thus would suffer a loss if the wells continue to pump.

Again, at least in theory, the well user can go back on the open market and try to purchase or leases water. We forget that water shortages at the end of the irrigation season were very common in the 20's, 30's, and 40's, giving rise for the push to build the Northern Colorado Water Conservancy District and for water users to own enough to get them through the irrigation season, even a dry one, or to lease water early to be sure to have enough water to finish the crop.

Q: What if it means that water is cut off to animals?

A: Again just as with crops, it is the right to use, not the kind of use, that initially determines if the water supply is cut off. One of the exceptions is that water for "domestic" purposes can continue to be used. But the extent is limited to the yard, a reasonable garden, and a "few" animals. This old dinosaur of a columnist can remember several cattle feeders around Windsor who were forced to send animals to the sale barn during past water shortages.

Q: Then what about people? Are we such a captive of this legal priority system that people could die of thirst?

A: No, cities have the right to step out of the priority system and take (condemn) water for a public purpose (assuming that there is water to take.) But of course payment must be made. A number of my farmer clients have rented their water to a Boulder County town instead of using it for farming. If the drought continues, we may see even more farmers doing this next year.

Q: What do you think about the newspaper stories in the Coloradoan and the Denver Post describing all of these dams that either might be built or enlarged, or reservoirs having sediment cleaned out?

A: Some projects may happen but most will not. As pointed out in a story in a Denver paper, the money is just not there. Also, each project will need to run the environmental gauntlet before construction begins. And finally we have Nebraska and Kansas peeking over our eastern border and the west slope folks eyeing through the mountain passes at the east slope flatlanders, all ready to use a bunch of Colorado and United State Supreme Court cases generated over the last two decades to put up their own legal dams preventing the physical dams from being constructed.

Q: Any predictions about what might catch the "water buffaloes" by surprise like the environmental laws did twenty years ago or to a lesser extent the reappearance of federal "riparian rights?"

A: Besides the latest two United State Supreme Court cases and a water master's ruling, rumblings are beginning to be made by those making the argument that Big-T Water is only for supplemental purposes and should not be considered a "primary" source of water.

Given that the Big-T Water is moving from agriculture use to municipal use, and furthermore with some of the cities relying heavily on Big-T Water, two stumbling blocks may appear. First, how much "other water" should be required for each unit of Big-T water owned by a municipality? Secondly, should the percentage of delivery of west slope water be affected if a significant amount of water is used for municipal purposes as opposed to agricultural use? Right now neither is an issue, but if litigation arises because of west slope interests, who knows what might happen.

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