Colorado Supreme Court clamps down on water rights
November 14, 2009
SUMMIT COUNTY – High Country streams may be a little safer from speculative water raids after a Colorado Supreme Court ruling last week tightened up the guidelines on claiming water rights for future development.
The case involved the city of Pagosa Springs and Archuleta County, but has local implications as well. Under the ruling, towns and other entities trying to claim water for future growth will be held to a higher standard of showing the claims are reasonable and based on solid evidence.
According to Drew Peternell, of Colorado Trout Unlimited’s Western Water Project, the Supreme Court laid out a new test for public utilities. In the Pagosa Springs case, the court ruled that the city’s claim for water based on a 100-year planning horizon was not reasonable.
“They have to show that claim for water is based on realistic projections for population growth. They can’t just pull numbers out the air,” Peternell said.
For Summit County, the new rules could apply against conditional (unused) water rights Denver Water and other Front Ranger water providers have on Western Slope streams, Peternell said.
Private appropriators, including ranchers or ski areas, for example, were already subject to stricter rules, but public entities had more leeway in making claims on water.
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Undeveloped (conditional is the legal term) water rights are subject to periodic hearings in water court. Every six years, the water providers have to show their claim on the water is still valid. When the time for those hearings comes, they will be held to the new standards spelled out by the court, Peternell said.
Denver Water, the biggest player in Summit County, joined in the court case on the side of Pagosa Springs, along with other water providers from around the state.
“We wanted the court to maintain a degree of deference to governmental entities that have to plan for future growth,” said Denver Water attorney Casey Funk.
Funk said the Supreme Court decision established some new factors that water courts have to consider before awarding water rights, but that water providers still do have some flexibility in planning for future needs.
Essentially, the ruling partly clarified some of the conflicts between the “great and growing cities” doctrine, which provides flexibility to plan for future water needs, and the anti-speculation doctrine, which limits pie-in-the-sky water claims.