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In the. Distriot Omit of the";. 4
Third Judicial District of the State of Colorado wiNlin and for the County of Bent.,
In the matter of the Adjudication 'of Priorities to the ude of r.
• yfater •for.;r:iigation,An District Number -67 •
-Findings and Decree of the Court. •
Novi.prr thin'17jrat day of July A.D,:,,1895. it being at the regular .*,
erirc.of CoUrt,-.:thin clause comes,. on tea be, heard upon the report of h,e, referee herein, jind till: exception thereto filed the court hay in heretofore :on:. th4 2Cth de.'y of February, 'A .D. 1895 enteVed an
in-, ,
terlocutory decree herein having at that time heard the arpuments ,of"oounsel'onthe exceptions filed . • herein to the said referee's 'rep
ort. Vlach paid 1,,nterlooutory deoree t,ran entered for the distrib-, titipn,pfi:A.zater lii tile said sii.striatUritill. the court could, h/rti-,er
• •r •^. • • • it
• •
1 13 Wiii•et :report, the excepf4o.ln thereto arid. t:le 'arz:mietits
. .
of 'counsq. pret3entedv, and 1.1.6 oouz.t.w..havi.s.ig fully considerela all
' ;.;• , {,
, •
thesai4 iiattere:and being ziow 51.111y,i4 advised in the Trot/nes, dOth order, and. (14epree an. here in after stit fort:, and as a basis of
the
decree herein, doth uke g.ce.. adopt ilia. of the findings of.'"Ite Referee, .,except as to the Lamar Ditah and the AmityCene.lr.wherein4 .
Cler.taii.modirp;aiione are raad.e, aia .6f which are as Inllows, 1,5
The ,Keesee..,Ditdh.
• 4, ;.-..pirst;-:;-Dart ,Keesee ir the ...owner of the ditch known ar. the.:Keesee
•., Ditch.
Second.- The heaclzat'e of the said ditch in located on the '•south bank of the Arita:watt:Elmer near the :.center of section nix in
the •
northwest 'quarter of the southeast ,iquarter or section six, of to7m-,
ship 23 south of range 48 west of the 6th P.11. .it Bent
county, .
Colorado,,
• , •
Third-. The said. ditch.tolz.en its water supply from the
Arkansas 11,1,ver IJ •
Irmil-7-... -'... D. . . ;40,---...., . ...
/.,
"st 11P--•• • ' 11111.
1iigir-County, Colorado., rram the Arkansas River C7.5 cubic feet Of water Per second of.time on account of an appropriation made on the 29th day of January A. P. 1885
Priority No.6.
The ditoh known aswthe Colorado and Kansas Canal's shall have—pr ity nuelar nix, and it is hereb% ordered, adjudged and decreed that there shall be permitted to flow into the said canal throuth the headgatethoreof located on the south bank of the Arkansas River in the Northwest. quarter of Section number 6 of township numbered 23 South of range 48 west of the 6th P.M. in Bent County, Colorado, from the Arkansas River 27.77 cubic feet of water per second of time on account of an ap'crorriatt.on made on the firnt day of April A.D. 1886,
Priority No.7,
The Ditch known as " The Amity Canplw shall have priority number seven, and it is hereby ordered, adjudged and decreed that there shall be permitted to flow into the said canal through the headgate thereof located on the north sid of the Arkansas River in the northwest quarter of the southwest quarter of' section number 36 near the line between the north and south half of said section 36 of township 22 south of range 48 west of the 6th P.M. in Bent County, Colorado, from the Arkansas River 283.5 cubic feet of water per
second of time on account of an appropriation made on the 21st day of February A.D. 1887.
Priority No.S.
The ditoh known as "The Hyde Pitch" shall have priority number 8, and it is hereby ordered, adjudged and decreed that there shall be permitted to flow into the said canal through the headgates there of located on the north 1.).:Ink of the Arka nsas River as follows(1) on eheadgate located in the northwest quarter of the southwest quarter of section numbered 28 in Township 22 south of range number ed 45 west of the 6th P.M. in P.rowrs County, Colorado, (2) the other headgete A4*-Located on the northeast quarter of the Southrest quarter of section numbered 29 of township 22 south of range 46 west of the 6th P.M. in ?rowers County, Colorado, 23.44 cubic feet of water per second of tin,. c'mrri A,.1- a*,onc• 1)41?..,
141,
trt.,
', .41J i et' , • . .— Now, on;this 14th day or',Ootober, A. D. 1912,
thiu matter
coming on for final hearing r'a4 adjudication upon the ,report of U.. S. Wood, Referee heFptoforo appointed,
and to whom
, 0
this matter%was, by order 7io. sour herein entered upon
the 'twenty.4ouith day of F4iUaryi A. D. 1913 refer* for
the ,purpoaeci in said order mentioned, us well as upon the ,
,:,.. .. ,
" 14
, evfdenee taken by and before the said Referee,
it. S:,, Atwood, 'imad the former.Referes, E.:07.;',Draund, whose reoignation
is
on file herein, together witlOiks.pre/iminary .rop4t ! and
augested,:interlocutory decree, in this matter, all of .
. ..
.., , .. . • . ..
II14.0 findings, ottdende and an abstract of said
testimony . •
.. - ..= '.
have been,a4are duly
C
filedn the ,:amog e recors o . d f 11.is, ourt, and the ... .:
9olirt huving boon fully advised .in. the premises an4:being fully/satioaed, from the several returns of notices,, certific4e3 Of publication, affidavits and certificates of. ' the said Referee, that the, 4aid testimony returnek:itadi up04
,Which tholindingo herein returned have severally been made, 4:
dit:h from said stream for the use aforesaid and for the benefit of the party or parties lawfully entitled thereto, under Appropriation Priority No. 1918-9, of date December
APPROPRIATION PaIORITY NO. 1918-3.
FIRST: That the name of the alaimant of said The Amity Canal, is The Arkansas Valley, Sugar Beet and Irrigiated Land Company, a corporation existing under and by virtue of the laws of New Jersey, and authorized to do business in the State of Colorado. That said Claimant's Post Office address is
SECOND: That said cemhl takes its supply of water from the ArkanJas River, a natural stream of the State of
7EIRD: That the headgate of said canal is located the Northwest Quarter of the Southwest cutirter
t. • • • • ••
• "
'1,6ornfrr of Section 20, nwnshi,o 23 Svat:
the 3aut1 420 3C, F.-st
1::•=4 , W31 ;77,7.77,4973"ficrw.
DISTRICT COURT, WATER DIVISION NO. 2, STATE OF COLORADO CASE NO. 80CW19
Clerl Div FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECREE
e the urt'Water o. 2, State of Co!orado
AUG 16 083 IN THE MATTER OF THE APPLICATION FOR WATER RIGHTS OF:
AMITY MUTUAL IRRIGATION COMPANY
IN THE ARKANSAS RIVER OR ITS TRIBUTARIES Clerk
The captioned matter came on regularly for trial before the undersigned on April 20, 21, 22, May 6, August 30 and 31, all in 1982. Briefs were filed and the Court now enters the following ,Findings of Fact, Conclusions of Law and Decree.
FINDINGS OF FACT
1. Application was duly filed herein on March 13, 1980. Notice of the application was duly and regularly pub-lished in accord with the statute therein made and provided; and all interested persons have been., properly notified of the filing of the application, the ruling sought, and the time within which objections should be filed.
2. Accordingly, this Court has jurisdiction over the subject matter of the application, and personal jurisdiction over the applicant, all appearing objectors and all other in-terested persons, public or private, as defined in either C.R.S. 1973, 37-90-103(11) or 37-92-103(8) even though they have elected to make no appearance herein. Applicant AMITY MUTUAL IRRIGATION COMPANY, appeared by Carl M. Shinn, Esq., of Shinn Lawyers.
3. Persons filing objections or appearances herein include SOUTHEASTERN WATER CONSERVANCY DISTRICT through its attorney, Kevin B. Pratt, Esq., of FairEield and Woods; THE
FORT LYON CANAL COMPANY, through its attorneys, Wayne B. Schroe-der, Esq., of Calkins, Kramer, Grimshaw Harring, and John J. Lefferdink, Esq., of Lefferdink Davis; some eighty-two individ-uals, including HARVEY D. ALLEN, et al, (CONEXSEL), through
their attorney, Kenneth J. Burke, Esq., of Holme, Roberts
Owen; subsequently, said counsel withdrew and Timothy J. Flana-gan, Esq., of Kelly, Stansfield and O'Donnell, became counsel for said group; CATLIN CANAL COMPANY through its attorney, Rex-ford L. Mitchell, Esq., of Mitchell Mitchell; THE COLORADO CANAL COMPANY and THE LAKE MEREDITH RESERVOIR COMPANY through their attorneys, Lawrence L. Fenton, Esq., and John Wittemyer, Esq., of Moses, Wittemyer, Harrison and Woodruff, P.C.; THE TWIN LAKES RESERVOIR AND CANAL COMPANY through its attorney, Lawrence L. Fenton, Esq..; THE LAKE HENRY RESERVOIR COMPANY through its attorney, John Wittemyer, Esq., of Moses, Wittemyer, Harrison and Woodruff, P.C.; PUBLIC SERVICE COMPANY OF COLORADO, through its attorney, Timothy J. Flanagan, Esq., of Kelly, Stansfield
O'Donnell; and HOLBROOK MUTUAL IRRIGATION COMPANY by its attorney, Ralph N. Wadleigh, Esq.
4. Some of the parties appeared throughout the pro-ceedings, engaging in all aspects of it, while others appeared only at those times and for those matters which particularly in-terested. them. Procedure was approved by the Court. All parties, of course, are bound by all parts of the decree.
5. Pretrial conference was held and the Court, in the pretrial order, required a settlement conference among the parties which was held on February 22, 1982 at Pueblo, Colorado, and as a result of which some of the objectors withdrew from further active participation in the case but with the understanding that they have the right to object to or appeal from this decree as they may be advised.
6. One ofethe objectors, The Fort Lyon Canal Company, and the applicant, and/or their predecessors in interest, have had a long history of dealings, transactions, associations and con-tractual relations - dating back 85 to 90 years. Their relations have culminated in several State and Federal court actions through the years including the most recent in which a Judgment of the Bent County District Court was entered by stipulation between the parties, in Action No. 2158 on the docket of that Court on October 31, 1944. Fort Lyon pleaded the res judicata and collateral estop-pel aspects of these various decrees and contracts herein and it therefore became necessary for this Court to review and interpret them; accordingly, briefs and oral argument from these two parties were required and other parties were afforded the opportunity to participate as they might be advised. Hearing was held on these matters at Lamar, Colorado, on January 28, 1982, after which an In Limine order was entered and dated on February 9, 1982 in
-which the ultimate issue between' these parties as to the In Limine matter raised by objector Fort Lyon was settled as follows:
"17. The Court concludes that all of the contracts and decrees, taken together, are plain and unambiguous, that it was the intent of the parties that Fort Lyon is to have the right, sup-erior to any right of Amity, to divert from the Arkansas River at Fort Lyon's headgate west. of La Junta, Colorado 5,483 acre feet of water each year for storage in Queen Reservoir and that Fort Lyon is required to bear the transit losses for said water."
(a) Motion for reconsideration of this order, particularly the above paragraph 17, was denied by order of March 9, 1982.
(b) Applicant herein sought and was granted per-mission to file a separate count or claim against the objector, The Fort Lyon Canal Company, in this action. The said objector has filed a counterclaim in that matter against applicant. The claims raised in these separate pleadings between these two parties have been severed for trial. These separate claims of these parties are still pending in this Court in this case, have not yet been tried, and this decree does not decide the issue or issues therein raised except to the extent that the Court herein has interpreted their contracts, judgment and relations as set forth in the In Limine order dated and entered herein on Feb-ruary 9,
19827-7. Applicant is a mutual ditch company organized under Colorado law with its principal office and place of busi-ness located at Holly, Colorado.
(a) It was created in 1936, and succeeded to all property rights of several predecessors including those of the Arkansas Valley Sugar Beet and Irrigated Land Company and The Great Plains Water Storage Company.
(b) There are 34,682 shares of stock issued from applicant and the water represented thereby is used to irrigate 34,682 acres of land north of the Arkansas River in Prowers County, Colorado. Its direct flow diversion point is located
in Bent County almost ten miles west of Lamar, Colorado.
(c) It has several direct flow irrigation rights
on the river which it diverts at that point, and also has many smaller direct flow rights upon tributaries to the Arkansas River which it is able to divert into its system from drainage ditches, draws and creeks.
(d) Applicant's direct flow diversion point is
located about four miles east of John Martin Reservoir and is
therefore located downstream from John Martin Dam in Water Dist-rict 67, and is therefore affected by the Arkansas River Compact
as are all water users on the Arkansas River. The Compact is
to be found at •C.R.S. 1973, 37-69-101, et seq.
8. In addition to its direct flow rights, applicant
owns the "Great Plains" reservoirs, which are located in Prowers
and Kiowa .Counties, generally north of Lamar, Colorado, and in Townships Nineteen (19) and Twenty (20) South, and in Ranges Forty-seven (47) and Forty-eight (48) West of the Sixth Prin-cipal Meridian.
(a) These reservoirs are filled by virtue of a storage decree entered in the Bent County District Court .at Las Animas and may be summarized as follows, from applicant's Ex- . hibit "A":
Total Total
Reservoir Total
Unavail Avail -Priority Appropriation Decree Reser- Capacity able able
No. Date Date voir Amount Amount Amount
6 Aug. 1, 1896 Feb.3, Nee Sopa 36,388 10,908
25,480 1927 "Sweet Water"
6 Aug. 1,'1896 Feb. 3, Nee Gronda 98,660 39,860
58,800 1927
6 Aug. 1, 1866 Feb. 3, Nee Noshee 94,847 25,485 73,363 1927
Aug. 1, 1896 Feb. 3, Nee Skah 35,657 9,937 25,718 1927 "Queens"
TOTALS 265,552 82,192 183,361 (b) The diversion point for this storage decree
is 'located in Otero County and is the same point as that used by
-The Fort Lyon Canal Company for 'diversion of its direct flow decrees from the Arkansas River.
(c) As early as October 29, 1897, applicant's predecessor entered into a contractual arrangement with The Fort Lyon Canal Company whereby applicant's predecessor made extensive repairs and improvements upon the canal of Fort Lyon and was granted in exchange a .perpetual right of way through the lands and canal of Fort Lyon from and including the headgate on the north bank of the Arkansas River in Sec-tion Thirty-two (32), Township Twenty-three (23) South, Range Fifty-five (SS) West in Otero County, Colorado to the east side of Gageby Creek in Section One (1), Township Twenty-two (22) South, Range Fifty-one (51) West in Bent County, Colorado, for the conveyance of water to the canals and reservoirs of appli-cant's predecessor, all subject to Fort Lyon's prior and ex-clusive right to convey through the headgate and the canal 933 c.f.s. to Fort Lyon's users. (Applicant's Exhibit "J").
(d) It was this contract which began the relation-ship between the companies discussed in paragraph 6 above.
9. Applicant seeks herein a decree permitting it to store up to 50,000 acre feet of its Great Plains decree in John Martin Reservoir as an alternative storage vessel rather than taking the water to its Great Plains reservoirs.
10. The Great Plains water which is stored in the Great Plains reservoirs is transported through either the Paw-nee or Comanche Canal to the main stem of the applicant's direct flow canal and is thus applied .upon the same land that the direct flow water is applied with only this difference: the westerly ten (1.0) percent of the system is above the confluence of the Pawnee and Comanche Canals with the direct flow canal and thus Great Plains storage water cannot be applied to it. However, all of the water of the applicant, no matter whether diverted under direct flow decrees or storage decrees is evenly divided among • all shareholders and those shareholders on the west end receive sufficient water from the direct flow decrees to make their use of water equal to that of those capable of receiving storage water on the east ninety (90) percent of the canal.
11. Any water stored in John Martin Reservoir, under the conservation pool of the Compact, or if allowed under this Decree, is capable of being used throughout the system of appli-cant, but applicant represents and the Court, relying on that
-5-representation, finds that the applicant will not be bring-ing additional acres into production and would not be in-creasing the consumptive use of its water.
(a) Applicant would continue to divide evenly its entire water supply, no matter how derivedj among all of its shareholders as in the past. Applicant does not contem-plate the changing of any cropping practices and farmers would continue to grow the crops of alfalfa hay, small grains, row crops, some beets, and onions, as they are produced at the present time.
12. The characteristics of the Arkansas River have been described in several cases from the Supreme Court of Colorado including: Fellhauer v. People, 167 Colo. 320, 447 P2d 986; Kuiper v. A.T. S.F. Railway Co., 195 Colo. 557, 581 P2d 293; and Southeastern Colorado Water Conservancy Dist-rict, et al v. Shelton Farms, Inc., 187 Colo. 181, 529 P2d 1321; and there is no need- to repeat them here. The one fact upon which every person seems to agree is that the waters of the Arkansas River are, and for many years have been, over -appropriated so that usually there is a serious and chronic shortage of water in the basin.
13. The applicant typically has a call on the river, year around, for its Great Plains decree.
14. The Great Plains system has been kept in a good state of repair ready to receive all of the water available to it at any time; the superintendent and president of applicant testified that they felt the system ready to receive all water decreed to it and that, the only limitation ever imposed was that of lack of water in the river to be diverted. The presi-dent of the company testified that in the twenty years he had been on the board of directors the only time applicant might have refused water under its Great Plains decree was when two breaks in the canal occurred in the disastrous 1965
"ONE-HUNDRED-YEAR" flood, and that even then applicant had repaired the breaks within a few days, certainly less than two weeks.
(a) One expert witness called by one of the obj-ectors testified that the system was "above average", and he reviewed a long history of repairs and maintenance performed by applicant upon its Great Plains system as revealed in the annual reports to
shareholders published by applicant (Fort
Lyon Exhibit "3").. The applicant owns and operates year
around the necessary heavy equip^ment including dragline, bull-dozers and tractors to maintain the system.
15. Applicant explained that it could not request a permanent change of a part of its decree to John Martin Reservoir for several reasons, including: (a) if John Martin Reservoir were filled to capacity, there would be no room for applicant's water; (b) if John Martin Reservoir were filled even close to capacity, it would be unwise to put Great Plains water in.John Martin because Great Plains water would be the first to spill; (c) no permanent easement or right in John Martin Reservoir had been obtained by applicant; and (d) usually, it is a "feast or a famine" on this decree, so that if there is a lot of water available to Great Plains, there is a lot of water available to John Martin, and applicant of necessity must have an alternate place to keep any excess water that might be diverted by it.
. 16. The Fort Lyon direct flow decrees and the Great
Plains decree are diverted at the same point of diversion and the water diverted under the Great Plains decree is conveyed from the diversion point to Gageby Creek in the same canal that Fort Lyon uses to convey the water diverted under its direct flow decrees and which is also the same canal that Fort Lyon uses to deliver water to its stockholders.
17. At Gageby Creek, there is a so-called bifurca-tion structure whereby the water theretofore conveyed in the mainstem of the Fort 1Ton Canal may be taken out of that canal and a part or all of it put in the Kickingbird Canal of appli-cant, thence to floweinto the Great Plains system. From the diversion point to the bifurcation structure is a distance of approximately forty-two miles.
(a) The mainstem of the Fort Lyon Canal continues downditch from the bifurcation structure a distance of many
miles and Fort Lyon continues to deliver its direct flow decrees to its stockholders beyond that point, as it does from the point of diversion.to the bifurcation structure.
18. As a part of the contractual relations between applicant and The Fort Lyon Canal Company, Fort Lyon has the right to 5483 acre feet of water diverted under the Great Plains decree, as mentioned in paragraph 6 above. No change is pro-posed by applicant with regard to said 5483 acre feet; it will continue to be stored in Queen Reservoir under this decree and in conformity to paragraph 6, supra.
19. The direct flow decrees of Fort Lyon and the Great Plains storage •decree of applicant have been diverted from the river by the Fort Lyon, and it is difficult to obtain an accurate measurement of the water when all decrees are divert-ing after it Leaves the diversion point, is partly applied to farms of Fort Lyon shareholders and finally the balance de-livered to applicant at the bifurcation structure at Gageby Creek.
(a) From the bifurcation structure, the water flows on through the Kickingbird Canal and Satanta Canals into the Great Plains reservoirs.
(b) The manner in which the water has been diver-ted under the decrees and its delivery to applicant at the bi-furcation structure at Gageby Creek has been a source of fre-quent argument and dispute between applicant and Fort Lyon and was one of the issues in the Bent County District Court action mentioned in paragraph 6, and was one of the issues supposedly settled by the parties by their various contracts. The seep-age or transit losses have been a prime source of dispute be-tween them.
20. These seepage or transit losses were established by stipulation between the parties, approveclAoy the judgment in the Bepft County District Court action asLTZ% in the Kicking-bird andltanta Canals and. 25 through the Western Division,
e from the diversion point to the bifurcation structure.
•
21. Fort Lyon now claims that, instead of these losses being true transit or seepage losses as stipulated, the actual losses are less then agreed upon and it should be award-ed a part of applicant's Great Plains decree to make up for the extra seepage or transit losses which it claims it will suffer if applicant does not use its canal to convey its Great Plains water from the run to its reservoirs. Its contention is that because its canal is too large for its decrees it will suffer more loss than if its canal were sized to handle only its decrees. At most, the only time Fort Lyon ever received any benefit from the Great Plains decree (other than the 5483 acre feet mentioned in paragraph 6) was when it was running over 933 c.f.s. in its canal; up to that point it was running its own water and Great Plains had no call upon it until this head was exceeded.
_ 8
•r•-•••••••
(a) This happens very infrequently as demon-strated by applicant's Exhibit "Q" which shows that, during the period from 1951 through 1975, Fort Lyon diverted on an average of only eleven .(11) days per year at flow rates greater than 933 c.f.s. Applicant's Exhibit "P" also shows that there is very little difference in the seepage between a canal with a SO-foot base width and one with a 25-foot base width at the indicated 933 c.f.s. capacity which Fort Lyon must maintain to handle its own direct flow decrees.
22. Other objectors, especially Colorado Canal, Lake Meredith, Twin Lakes, Lake Henry and Holbrook contend that frequent freezing in the wintertime has occurred result-ing in their beresult-ing able to exercise their junior decrees; and if applicant is allowed to permit its Great Plains water to flow on down the Arkansas River into John Martin Reservoir, as applied for, if will thereby increase the burden upon the river and there curtail them. They therefore contend that • applicant should have imposed upon it a historical average so that it is limited to the average amount that it has historic-ally diverted under this decree. Southeastern Colorado Water Conservancy District supports this proposition of these obj-ectors, not because any of its decrees or rights will be cur-tailed, but because it.claims a damage will occur to the whole river.
23. Dr. Theodore Zorich, an expert in water re-sources,called by applicant, testified that the application and the plan of applicant herein presented an unique opportun-ity for water conservation on the Arkansas River.
(a)' He testified that because of evaporation from applicant's Great Plains reservoirs, and because of the necessity for it to fill the reservoirs with dead storage before any water became available for beneficial use, a great saving could be effected by applicant's storing the water in John Martin Reservoir rather than in the Great Plains reser-voirs. Zorich estimated that the loss on the Great Plains would be about five lineal feet per year because of the great-er area exposed to evaporation than in John Martin and be-cause of the necessity for filling the dead storage, and that the same water placed in John Martin would lose only about three feet per year.
(b) He testified that on an average year of 30,000 acre feet, 10,800 acre feet would be lost to applicant and the river by evaporation if the water were stored in Great Plains, while, the loss in John Martin Would be only 3,000
acre feet, a net saving of 7,800 acre feet of water per year. 24. Although other experts differed with Dr. Zorich as to exact figures on the quantity of water to be conserved in this manner, not one contradicted his testimony that there would be resulting conservation of water.
(a) The other experts included Kenneth Wright, called by Southeastern Conservancy District, Duane Helton, called by Fort Lyon, John Patterson,called by Colorado Canal and Robert Jesse, Division Engineer of Water Division 2, called by several parties.. Each of these witnesses supported the
opinion of Dr. Zorich that a water conservation would result. (b) Helton and Patterson testified that they had encouraged applicant to make this application when they were formerly employed by the Division of Water Resources of the State of Colorado.
25. All experts agreed that if 7,800 acre feet could be saved from a given quantity of water, the effect upon the river would be even greater because of the use and re-use of water by reason of return flows.
26. While the transit loss of the water in the river will probably be less than in the canal, the users who might thereby be injured w6uld be the John Martin Conservation Pool, that is, District 67 users and the State of Kansas. Any in-jury, however, would be more than compensated by the increase of return flows to them by the additional water which appli-cant.saves to the river. These other users also would be more than compensated under the present operating criteria of the Arkansas River Compact Administration because it requires a user storing in John Martin.Reservoir at present to give up thirty-five (35) percent of the water so stored to the Conser-vation Pool
27. Some of the users of District 67, especially Buffalo Canal, have very senior direct flow rights and when the priority system is on the river, can call through John Martin Dam and up the river to users above John Martin.
-•
-thing that applicant, does to increase water in the river to District 67 ditches will make it less likely that•a call will be placed on the upstream ditches and thereby benefit them. This is especially true of the Fort Lyon Canal because its direct flow decrees are most likely to be called out by the senior decree of the Buffalo.
28. Claims of objectors, referred to in the above paragraphs 21 and 22, may be summarized as follows:
(a) Whether a limitation in the nature of historical use, as an average, should be placed upon the decree;
(b) Whether the Court should impose winter-time conditions because of possible freezeouts;
(c) Whether Fort Lyon should be awarded an interest in the Great Plains decree if it is stored in John Martin, rather than in the Great Plains Reservoirs.
CONCLUSIONS OF LAW I.
The proposed change involves only the approval of an alternate place of storage. Storage rights are not limit-ed to historical use in considering a transfer of the right. City of Westminster v. Church, 167 Colo. 1, 445 P2d 52. That case also stands for the proposition that change of use does not create a greater burden as to storage water. A reser-voir right permits one filling of the reserreser-voir per year. Change of use does not create a greater burden as to storage water.
No historical averages or wintertime conditions should be imposed because of freezing in either of the Fort Lyon Canal or the Kickingbird. This condition historically existed infrequently and applicant at all times has been diligent in maintaining its system and in doing necessary
acts to divert its decree. This is particularly :true since it is apparant that by the reduction of evaporation resulting from the change, the River system as a whole will gain water.
(A) The Court concludes that the proposal of applicant would result in no increase in the duty .of water and no increased consumptive use.. Enlarged Southside Irrigation Ditch Company v. John's Flood Ditch Co., 116 Colo. 589, 183 P2d 556; Farmers' High Line Canal Reservoir Co. v. City of Golden, 129 Colo. 575, 272 P2d 629. Nor should a user be penalized by reason of the vagaries or vicissitudes of the weather. Any user is confronted from time to time with nat-ural conditions which prevent the diversion an application of the water right, such as canal breaks, dam washouts, weed jams, necessary system shutdowns for repairs and maintenance. See Flasche v. Westcol.o Company, 112 Colo. 387, at 393, 149 P2d. 817; Hallenbeck v. The Granby Ditch Reservior Company, 160 Colo. 555, at 567, 420 .1)2d 419.
The Court concludes that no contract or prior decree as affecting applicant and Fort Lyon requires Amity to yield any part of its Great Plains water (excepting the 5,483 acre feet above mentioned) to Fort Lyon, nothing that requires applicant to continue to use its easement in the Fort Lyon Canal, or to continue to divert its decree, and nothing that can be construed to require any compensation to Fort Lyon, excepting only payment for expenses of upkeep and maintenance, for use of applicant's easement in the Fort Lyon Canal.
(A) The Court concludes that applicant has the right from time to time to remove its water from Fort Lyon's canal without losing its right-of-:way in the canal. Compton v. Knuth, 117 Colo. 523, 190 P2d 117; Hallett v. Carpenter, 37 Colo. 30, 86 Pac. 317; The Farmers' High Line Canal and Reser-voir Co. v. The New HamiTsTire Real Estate Company, 40 Colo. 467, 92 Pac. 290; The People Ex Rel., Standart Assignee of Crippen Lawrence Co.v. Farmers' High Line Canal and Reser-voir Co., 25 Colo. 202, 54 Pac. 626 and Fruit Growers' Ditch and Reservoir Company v. Donald, 96 Colo. 264, 41 P2d 516.
(B) Any seepage or transit loss from a canal or reservoir becomes part of the natural stream to which it is
-tributary and thus the property Of the people. The Fort Morgan Reservoir & Irrigation Co. v. McCune, State Engineer, 71 Colo. 256, 206 Pac. 393; Trowel Land & Irrigation Co. v. Bijou Irr. Dist., 65 Colo. 202, 176 Pac. 292; Durkee Dil-EE Company v. Means, 63 Colo. 6, 164 Pac. 503; Comstock, State Engineer v. Ramsay, 55 Colo. 244, 133 Pac. 1107.
IV.
A water right is a valuable right and as an adjunct of it, it may be sold, transferred, exchanged, moved and other-wise changed if protection is afforded to the rights of others.
Weibert, et al v. Rothe Brothers, Inc., Colo. , 618
P2d 1367, ana—the cases therein cited.
(A) The doctrine of "maximum utilization" must be integrated into the law of vested rights. Fellhauer v. People, supra, A-B Cattle Company, et al v. U.S.A., 196 Colo.
43 539, 589
2d
57. This doctrine should embrace the concept of conservation. If applicant, as indicated by all experts, can effect a plan to conserve a large amount of water through re-duction of evaporation, it should be encouraged and permitted to do so. The Court concludes that adequate protection for all users will result if the terms and conditions as set forth here-in are observed.
JUDGMENT AND DECREE
NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED: 1. The application is granted and applicant shall be permitted, it it chooses, to store not to exceed 50,000 acre feet each year', of water produced by its Great Plains decree in John Martin Reservoir.
2. The following terms and conditions are imposed and shall be observed:
/
(a) Applicant shall divert only that water which is available at the headgate of the Fort Lyon Canal under its Great Plains Reservoir prior-ity.
(b) Water diverted to storage in John Martin Reservoir via the Arkansas River shall be subject to transportation charges as
assessed by the Division Engineer.
-(f)
\V\
ci 3. As noted above, a claim of the Fort Lyon
Canal
hy and
counterclaim of applicant were severed fromthe
of the change application originally filed by applicant
Water diverted' to storage in John Martin Reservoir under applicant's Great Plains priority shall be measured at the La Junta Gaging .Station on the Arkansas River.Water stored in John Martin Reservoir shall be subject to prorata evaporation' changes as assessed by the Arkansas River Compact Administration.
The volume of water delivered by the appli-cant to storage in both the Great Plains reservoirs and John Martin Reservoir with-in a swith-ingle water year shall never exceed the 265,552 acre feet decreed to the Great Plains reservoirs.
The first diversion under the 1896 right in any water year shall he for delivery to Queen Reservoir to fill dead storage and thereafter the Fort Lyon Canal Company's contractual right to the first 5483 acre feet of water, measured at Fort Lyon's diversion headgate, divertable under the decree will be honored by applicant.
Applicant will not divert water to storage in John Martin Reservoir at a rate in ex-cess of 880 c.f.s., as measured at the La Junta gage on the Arkansas River. In addi-tion, diversions during the period from November 16 to March 1.5 would be limited to SOO c.f.s. at the La Junta gage.
Pursuant to C.R.S. 1973, 37-92-304(6), this decree shall be subject to reconsideration by the Water Court on the question of in-jury to the vested rights of others during the ten years following the date of entry of this decree.
-ii)ursuant to Colorado Rules of Civil Procedure 54(b), the i \Court determines that there is no just reason for delay in
entering final judgment as to the change application origin-ally filed by applicant, and hereby directs the bntry of final judgment as to that claim.
I Lk6j
DONE in open Court this / day of August, 1983.
pc:
BY E COURT:
JOHN C. STATLER, SPECIAL WAT JUDGE.
••• A in the office of the District Court Water vit:ion No. 2, State of
Colorado AUG 16 1983
Clerk
DISTRICT COURT
WATER DIVISIQN NO.
2
STATE
OF
COLORADO
Certified to be a full, true
correct copy of original
.:n file.
Date:
AUG 18 1983
S. LU&L.110, CLERKBy:
rilnniaL
s
Deputy Clerk
- 1-DISTRICT COURT, WATER DIVISION NO. 2, COLORADO Case No. 80 CW 19
FEB 15 1984
cRe...z_er,357114,2
Clerk
ORDER AMENDING FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECREE
IN THE MATTER OF THE APPLICATION FOR WATER RIGHTS OF AMITY MUTUAL IRRIGATION COMPANY
IN THE ARKANSAS RIVER
This matter came on for hearing before the undersigned, by means of a telephonic conference call between the undersigned and the appearing attorneys as hereinafter set forth, upon the following motions:
(a) Motion for New Trial or to Alter or Amend Judgment filed herein by Colorado Canal Company, Lake Meredith Reservoir Company and Lake Henry Reservoir Company;
(b) Motion for New Trial or in the alternative to Alter or Amend Judgement filed herein by Catlin Canal Company,
(c) Motion for New Trial filed herein by Ft. Lyon Canal Company; and
(d) Motion for New Trial and Motion to Alter and Amend filed herein by Southeastern Colorado Water Conservancy District on January 20, 1984 commencing at the hour of 2:00 p.m.
The appearances, by telephone, are as follows:
Carl M. Shinn, Esq. of Shinn Lawyers, P. 0. Box 390, 200 West Elm Street, Lamar, Colorado 81052 for Applicant,
Timothy J. Beaton, Esq. of Moses, Wittemyer, Harrison Woodruff, PC, P. 0. Box 1440, Boulder, Colorado 80306 for Colorado Canal Company, Lake Meredith Reservoir Company, and Lake Henry Reservoir Company, Rexford L. Mitchell, Esq. of Mitchell & Mitchell, PC, 512 N. Main Street, Rocky Ford, Colorado 81067 for Catlin Canal Company; Wayne B. Schroeder, Esq. of Calkins, Kramer, Grimshaw
Harring, Suite 3800, One United Bank Center, 1700 Lincoln Street, Denver, Colorado 80203 for the Ft. Lyon Canal Company;and. ,Kevin B. Pratt, Esq. of Fairfield Woods, 1600 Colorado NO104.3,r13
Bldg., 950 Seventeenth Street, Denver, Colorado,
Southeastern Colorado Water Conservancy District,.\ALS)\-.:
\ \O
\ '
-The Court, thereupon, having reviewed the file, the various motions, and the arguments presented by Counsel as noted aforesaid, finds and concludes that the Findings of Fact, Con-clusions of Law, and Decree entered therein on August 16, 1983 should be amehded in the following respects:
(a) The Court now finds that it erred with regard to certain seepage or transit losses as the same were set forth in paragraph 20, on page 8, of the Findings of Fact, Conclusions of Law and Decree entered herein on August 16, 1983, and therefore amends that paragraph to read as follows:
"20. The seepage or transit losses were.estab-lished by stipulation between the parties, approved by the judgment in the Bent County District Court action as fifteen percent (15%) in the Kickingbird Canal, sixteen percent (16%) in the Satanta Canal and twenty-five percent (25%) through the Western Division, i.e. from the. diversion point to the bifurcation structure."
(b) The Court also now finds that additional conditions ought to be added to those terms and conditions imposed
which are set forth in paragraph 2 commencing on page 13; accordingly, two more conditions shall be imposed, as follows:
"(i) Applicant shall continue in the future to pay whatever storage charges that are imposed upon it by the Arkansas River Compact Administration."
"(j) Applicant shall not in the future increase its consumptive use of water and shall not add any additional irrigated acres under its system."
(c) The Court now concludes that it was in error in applying C.R.C.P. 54 (b) to the action as set forth in paragraph 3 commencing on page 14; accordingly, para-graph 3 commencing on page 14 of the Findings of Fact, Conclusions of Law and Decree entered herein on August 16, 1983 should be, and the same is hereby, stricken.
(d) Accordingly, the Findings of Fact, Conclusions of Law, Judgment and Decree entered herein on August 16, 1983 are amended as hereinabove set forth, and save and except for the amendments herein set forth, the various
-motions for new trial or for amendment filed herein by the parties as above set forth pursuant to C.R.C.P. 59 (b) should be and the same are hereby denied.
Dated:February 15, 1984, xiunc pro tunc January 20, 1984.
xc: Carl M. Shinn
Howard Holme and Kevin Wayne B. Schroeder John J. Lefferdink Timothy J. Flanagan Rexford L. Mitchell Lawrence L. Fenton John Wittemyer Ralph N. Wadleigh
John U. Carlson and Barry Division Engineer
State Engineer
1
AL
JOHN C. ST'Tb.
Special Water Judge. U
B. Pratt
Filed in the office of the Clerk, District Court Water
Division No. 2, State of Colorado
C. VaughanVaughan
FEB
15 1984
4
. _.
DISTRICT COURT, WATER DIVISION NO. 2, STATEF COLORADO /.
Case No. 80CW19 : •• if'0, fi of the
CI esi.k.Z. id Court Water - •
FINAL JUDGMENT AND DECREE
0
3
1
Owls= No. 2, State of
S
Colorado
IN THE MATTER OF THE APPLICATION FOR WATRIGHTS OF AMITY MUTUAL IRRIGATION COMPANY
IN THE ARKANSAS RIVER OR ITS TRIBUTARIES I
••••
• • •• •
FEB 18 1987
Clerk
The Court, having been presented with a written Stipulation dated February 16, 1987 between the Applicant and Objector, the Fort Lyon Canal Company, which said Stipulation refers to and incorporates within its terms a "1986 Agreement" dated December 12, 1986 and executed by the President and Boards of Directors of each of the named parties, and the Court having reviewed the file herein, and being fully advised in .the premises, doth find:
1. That the only unadjudicated issues in the above captioned action are those remaining between the applicant and the Fort Lyon Canal Company which were raised in a separate claim filed by the Applicant against the Fort Lyon Canal Company and those raised in the counterclaim filed by the Fort Lyon Canal Company against the Applicant; that all of said issues so raised have now been fully• settled by the Sti ulation and A reement now filed herein
2. That there remains nothing further to adjudicate in the captioned action.
THE COURT, accordingly doth adjudge and decree as follows, to-wit:
1. All unresolved claims nowRepd.j..pg_beqp MDRlican and the Objector/ the Fort Lyon Canal Company,. are.her.e_by _dismissed
wih prejudice.
--2. That the "Findings of Fact, Conclusions of Law and Decree" entered herein on August 16, 1983, as amended by the "Order Amending the Findings of Fact, Conclusions of Law and Decree" entered herein on February 15, 1984, nunc pro tunc January 20, 1984 shall remain in full force and effect.
3. That this shall constitute a final judgment and decree for all purposes under all Colorado Rules of Civil Procedure; the Clerk of this Court is directed to send a copy of this Final Judgment and Decree to all parties pursuant to C.R.C.P. 88(c).
1
1
1
1
Dated February Approved: SHINN LAWYERS By:CARL SHINN, Reg. No. 1302 P. O. Box 390
Lamar, CO 81052
Attorneys for Applicant CALKINS, CRAMER, GRIMSHAW
& HARRING By:
WAYNE B
Suite 3800, One United Bank Center 1700 Lincoln Street
Denver, CO 80203
LEFFERDINK DAVIS & BULLOCK By
John S. Lefferdink #7272
•
DISTRICT COURT, WATER DIVISION NO. Case No. 80 CW 19
STIPULATION
IN THE MATTER OF THE APPLICATION 0411',
n •
F.,COLORADO
z a FEB I 3 187 AM
a 3 1987 4 c
WATER RIGHTS OF
AMITY MUTUAL IRRIGATION COMPANY '
IN THE ARKANSAS RIVER OR ITS TRIBUTARIES
GIAIA.Z..2L09440
CLEM,*COME NOW Applicant Amity Mutual Irrigation Company and
Objector, the Fort Lyon Canal Company by their respective
attorneys and stipulate as follows:
1. Applicant and said Objector have, inter alia, settled all issues between them which are now pending in this action which settlement is evidenced by a 1986 Agreement dated December 12, 1986, identified as Exhibit "A" attached hereto and by such
reference made a part hereof.
2. Said 'Objector withdraws its Statement of Opposition pursuant to the terms of said settlement.
3. Applicant shall not seek herein any decree that is less restrictive as to Applicant than the decree presently entered by the above described Court on August 16, 1983, as amended February 15, 1984, nunc pro tunc January 20, 1984.
4. That the "Findings of Fact, Conclusions of Law and Decree" entered herein on August 16, 1983, as amended by the "Order Amending the Findings of Fact, Conclusions of Law, and Decree" entered herein on February 15, 1984, nunc pro tunc January 20, 1984, which was appealed by several other objectors to the Supreme Court of the State of Colorado in Case No. 84SA109 and which appeal was dismissed by said Court on February 11, 1986 "as lacking a final judgment" shall remain in full force and effect unless the same shall be ordered to be revised on a review by the Supreme Court of Colorado in an appeal by some other objector, it being understood that the Objector Ft. Lyon Canal company shall not participate in any such appeal.
5. The Court may enter its judgment dismissing with
prejudice any and all unresolved claims now pending between Applicant and this Objector.
•
Dated: February 16, 1987 SHINN LAWYERS
CARL M. SHINN, #1302
Attorneys for Amity Mutual Irrigation Canal Company
CALKINS, KRAMER, GRIMSHAW & HARRING
By
WAYNE . SCHROEDER #2447
LEFFERDINK, DAVIS & BULLOCK By
JOHN S. LEFFERDINK, #7272 Attorneys for Fort Lyon Canal Company
1986 AGREEMENT
This agreement between the Amity Mutual Irrigation Company and the Fort Lyon Canal Company is for the purpose of settling the lawsuit Case No. 80CW19 concerning.the issues covered in this agreement and shall be binding on each Company, and acts as a stipulation to clarify issues created from the 1944 Agreement.
Dated this 12th Day of December , 1986.
Agreed as follows:
1. Western Division of the Fort Lyon Canal Company A. Rehabilitation
(
1)
A special committee made up of the two boards will evaluate the Western Division and make recommenda-tions for a plan of rehabilitation.(2) The Fort Lyon Canal Company will exercise the plan for rehabilitation that will restore the Western - riLyo" Division to the decreed capacity of the two ditches - G re-% Pt.%,\5 (2,083 CFS. measured at the a Junta measuring flume)
as soon as possible allowing or an 1800 CFS. maximum rate at the Horse Creek Flume.
Fe B. Verification of Decreed Capacity
(
1)
Upon reaching the decreed capacity of the two ditch companies, it will be verified by both companies as evidenced by the delivery of the proper amount of water during high flow events.C. Maintenance
(1) The Fort Lyon Canal Company, upon completion of the rehabilitation, will continue to maintain its canal to the decreed capacity.
(2) The special committee will continue to observe and evaluate the condition of the Western Division. (3) Both companies realize there may be periods of time
that the decreed capacity may not be reached caused by physical conditions beyond the control of either company.
2. Priority running of the Amity Great Plains Decree
A. River diversions will be exercised according to the priority system under the direction of the Divison II Engineer,
1986 Agreement Page 2 bLI
B. If the Amity Great Plains Decree is in priority and water is available to divert, the Fort Lyon Canal Company will divert it to the fullest, unless otherwise instructed by the Amity Mutual Irrigation Company.
C. Prudent management will be used by Amity Mutual Irrigation Company when exercising the 50,000 AF Transfer or when de-livering water under the Great Plains Decree.
D. We shall continue to operate under the concepts of the 1944 Agreement as amended by this agreement.
3.
SluicingA. When Amity Great Plains water is being delivered to John Martin Reservoir, the Fort Lyon Canal Company may sluice with that water at selected points in the Western Division. B. Fort Lyon will bear the additional transportation loss
from its headgate to John Martin Reservoir when sluicing with Great Plains water.
C. The Division II Engineer will develop and administer a plan of operation for sluicing, which shall protect Amity from injury.
4. Communication
A. The Fort Lyon Canal Company will notify the Amity Mutual Irrigation Company by telephone at the time any of the following events occur:
When storage water is available to divert under the Amity Great Plains Decree.
(2) When Amity Great Plains water is used in sluicing. (3) When any portion of the 5483 AF is being diverted by
the Fort Lyon Canal Company storage decree.
B. The Amity Mutual Irrigation Company will notify the Fort Lyon Canal Company forty-eight (48) hours in advance when the storage destination of Great Plains water is changed, except in emergency situations.
1
1
1
1
1
1986 Agreeme Page3 tFs ti
C. Reports(1) The Fort Lyon Canal Company will send the Amity Mutual Irrigation Company 30 day written reports of all diver-sions made.
(2) There will be daily communication between the companies when deliveries are being made to the Amity Great Plains Lakes.
D. Schedule joint Board Meetings
(1) A meeting scheduled at the beginning of the storage season, 2nd Monday of November, each year.
(2) A meeting scheduled prior to the summer irrigation season, 2nd Monday of March, each year.
5.
Method of BillingA. The 1984-85 method of billing will be used until a new simpler method is developed and adopted by both companies.
6.
Water Shortage and Bills Owed.A. Amity Mutual Irrigation Company will pay $90,000.00 to Fort Lyon Canal Company to settle the bills for the years 1980-81, 1981-82, 1982-83, and 1983-84 that Fort Lyon Canal Company owes to Amity Mutual Irrigation Company and that Amity Mutual Irrigation Company owes to Fort Lyon Canal Company and they will be considered paid in full.
B. If there is a water shortage that the Fort Lyon Canal Company owes the Amity Mutual Irrigation Company for the years
1977
through 1984, it will be considered paid in full.
C. These issues now pending in Case No. 800W19 will be dismissed, with prejudice.
7.
Litigation PendingA. Fort Lyon Canal Company will remove their objection to the Amity 50,000 AF Transfer Decree in Case No. 80CW19.
B. Amity Mutual Irrigation Company will remove their objections to the Fort Lyon Canal Company's litigation Case No.'s 79CW160, 79CW161,80c1451faiam285-.
1986 Agreement Page 4
C. It is understood and agreed by both parties that the language of the decrees to be entered in eases 80CW19, 79CW160, 79CW161, and 80CW51 will be at least as restrictive as the language presently decreed by the court.
D. Amity's objection to Fort Lyon Case No. 79CW178 (Augmentation Plan) will remain pending, however, both parties will continue to faithfully negotiate for timely settlement before it is argued for court decision.
E. Both canal companies have joined the District Wide Winter Storage Decree Case No. 84CW179. It is understood by both parties that this decree takes precedence over exercising 79CW178.
8. 5483 Acre Feet
A. The 5483 AF will be measured as determined in Case No. 83SA502. Further interpretation by the State Engineer and the Division II Engineer is being requested by both canal companies.
B. The 5483 AF,will be accounted for as outlined in the winter storage decree proposal agreed on at the January 10 and March 14, 1986, meetings. of the Winter Storage Board of Trustees and the letter to the Board from Amity dated January 10, 1986. C. Delivery of the 5483 AF
The Fort Lyon Canal Company will have the option of diverting the 5483 AF to the Queen Reservoir or other storage facilities, or direct flow it, less transportation losses when applicable.
(2) Prudent management will be used by the Fort Lyon Canal Company when exercising the option.
AMITY MUTUAL IRRIGATION COMPANY
fl
t:\
A
04,t7fr1u Itt
FORT ON CANAL COMPANY
. •.•..
DISTRICT COURT, WATER DIVISION NO. 2, STATE OF COLORADO Case No. 80CW19
Filed
ORDER AMENDING FINDINGS OF FACT, CONCLUSIONS OF LAW, Gua, Water
DECREE
jvsjo o. , State of Colorado
IN THE MATTER OF THE APPLICATION FOR WATER RIGHTS OF:
AMITY MUTUAL IRRIGATION COMPANY
IN THE ARKANSAS RIVER OR ITS TRIBUTARIES
JUN 15 1987
Clerk
THIS MATTER comes on before the undersigned upon two
Stipulations; one is a Stipulation between Applicant and
South-eastern Water Conservancy District and the second is a Stipulation
between the Applicant and the Colorado Canal Company, the Lake
Meredith Reservoir Company, and. the Lake Henry Reservoir Company.
The Court, having considered the pleadings, Stipulations,
Judgments, and reviewed the matters and things as contained in the
file, and being fully informed, accordingly Doth Order:
1. That the Court has jurisdiction to enter this Order.
2. That all parties in interest have been served by Applicant
with the two Stipulations and that no objection by any party has
been filed herein.
3. Finds and Concludes that the Findings of Fact, Conclusions
of Law, and Decree as entered herein on August 16, 1983 should be
amended in the following respects:
a. Paragraph I of the Conclusions of Law as contained on
page 11 of said Oecree should be and the same is hereby amended
to read as follows:
The proposed change involves only the approval of an alternate place of storage. A change of water right to an alternate place of storage must be accomp-lished without injurious effect. Southeastern Colorado Water Conservancy District, et al v. Fort Lyon Canal
Company,, 720 P.2d 133, (Colo. 1986), Westminster v. Church 167 Colo 1, 445 P.2d 52. Here the Court concludes that this transfer can be accomplished without injury to. other appropriators.
JUN
!••
,
b. That Paragraph 2(h) of the Judgment and Decree as contained on page 14 thereof should be and the same is amended to read as
follows:
(h) Pursuant to C.R.S. 1973, 37-92-304(6), this decree shall be subject to reconsideration by the Water Court on the question of injury to the vested rights of others during the twenty years following the date of entry of this decree.
4. As thus amended, the Findings of Fact, Conclusions of
Law, and Decree as entered herein on August 16, 1983 as the same were amended by the Order Amending Findings of Fact, Conclusions of
Law, and Decree entered hereon on February 15, 1984, nunc pro
.tunc January 20, 1984, be and the same are ratified in all respects and the same are and shall be the final judgment of this Court in said cause.
DATED:
1--v-z.z.. /5—> /sw 7
,
_ 2
CAT-2
, WOHN R. TRACEY - WATER
_
UDGE
642 643 Diversion of Waters from State 37-81-101 tigtments. It is unlawful for any
headgate, automatic
sell-or any canal or reser-britY:io install, repair, maintain, ame..7from the owners thereof 'Wind% or who represents any
interfere with or seek devj .or structure. Any àUtthffatic self-registering device, r''tiator weir for the measuring who tampers with or Uch instrument or device, lituilty of a misdemeanor ,,Ayia fine of not more than • liVrtiOre than one thousand
't
IC. —90, § 222; CRS 53,
6q6
y1:4"c7.i.historic natural deple-,
.ffinds that water can be trAffe.water so stored ca
4.
_Vitage appropriators4 liffip:ropriative right due itp—errriit such upstream 11?.t1e.:.promptly released• edby such senior for•
otteoF. in 'concert, may '1...EAT,hiii)r.opriators senior ria0r is entitled from. , -e'.:extent that such vp.4 tive requirements ulpgit to his appro-siCii,,senior may be ,,. Ivaiile it is in oper-1,. e provided for
M.
,
•
ntinuity to meet . t9.1n rmally beenoas c3.11:, the supplier use from water t.impairing the ,of substitutionçright and may ropriation.
titute supply lave i
liricrits
in section 34-32-103 (9), C.R.S., there shall be no requirement to replace the amount of historic natural depletion to the waters of the state, if any, caused by the preexisting natural vegetative cover on the surface of the area which will be, or which has been, permanently replaced by an open water surface. The applicant shall bear the burden of proving the historic natural depletion.
Source: L. 69, p. 1196, § 8; C.R.S. 1963, § 148-11-25; L. 89, p. 1425, § 4.
Law reviews. For article, "A Review of Recent Activity in Colorado Water Law", see 47 Den. L.J. 181 (1970). For comment, "Maximum Utilization Collides With Prior Appropriation in A-B Cattle Co. v. United States", see 57 Den. L.J. 103 (1979). For arti-cle, "The Emerging Relationship Between Environmental Regulations and Colorado Water Law", see 53 U. Colo. L. Rev. 597 (1982). For article, "The Physical Solution in Western Water Law", see 57 Li. Colo. L.e Rev. 445 (1986). For article, "Quality Versus Quantity: The Continued Right to-Appropri-ate — Part I", see 15 Colo. Law. 1035 (1986).
For article, "Colorado's Law of "Under-ground Water": A Look at the South Platte Basin and Beyond", see 59 U. Colo. L. Rev. 579 (1988).
"Quality" requirement of statute is not vio-lated when person slows down movement of ‘vater, resulting in the settling of silt to the bot-tom and leaving only clear water for the senior appropriator. In re A-B Cattle Co. v. United States, 196 Colo. 539, 589 P.2d 57(1978).
Applied in Purgatoire River Water Conser-vancy Dist. v. Kuiper, 197 Colo. 200, 593 P.2d 333 (1979).
Water Rights - Generally
ARTICLE 81
Diversion of Waters from State
Law reviews: For article, "Water Export", see 13 Colo. Law. 1004 (1984): for article, "State Water and State Lines: Commerce in Water Resources", see 56 U. Colo. L. Rev. 347
(1985). 37-81-101. Diversion of water outside
state application required -special conditions - penalty. 37-81-102. Officials charged with
enforce-ment.
37-81-103.
37-81-104.
Effect of apportionment cred-its upon diversions of water from state.
Fee for diversion - fund cre-ated.
37-81-101. Diversion of water outside state - application required - special conditions - penalty. (1) (a) The general assembly hereby finds and declares that the location and availability of water in this state varies greatly from place to place and that the state as a whole suffers a shortage of water. The general assembly further recognizes that, because of Colorado's unique loca-tion at the headwaters of four of the naloca-tion's major western rivers and because all the major river systems in Colorado flow out of the state, and that, in order to insure the availability of these scarce water resources for the use of citizens of the state of Colorado, compacts have been entered into with the downstream states on all the major rivers originating in Colo-rado.
(b) It is also recognized that it has been the continuing historical policy ofate gormillor.. A cover
anveninte olinvatempurcali
